Bail v Scott-Mackenzie

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2016 02552

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and –

IN THE MATTER of the Estate of SIEGFRIED RUOPP, deceased

BETWEEN

LAURACE BAIL	Plaintiff
v
JOHN EWEN SCOTT-MACKENZIE (who is sued as the Executor of the Estate of SIEGFRIED RUOPP, deceased)	Defendant

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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 counsel in their written submissions, and I heard submissions as to that further material on 19 September 2016. I refer to the further material below.

Summary of Conclusions

It is my view that the inclusion in the definition of ‘eligible person’ in s 90 of the Act of a domestic partner of the deceased at the time of the deceased’s death, with equal status to a spouse, is an indication that the legislature may have intended that stepchildren of domestic partnerships should be encompassed in the meaning of stepchild. The doubt or ambiguity as to the legislative intention is resolved by the explanatory memorandum accompanying the introduction of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014. That explanatory memorandum is an aid to the interpretation of the term in the Act because it indicates a legislative intent to embrace the wider meaning of ‘stepchild’ as including the child of a parent who was in a domestic partnership with the deceased.

By analogy with the common law position of a stepchild of a marriage, the relationship of stepparent and stepchild of a domestic partnership for the purposes of Part IV ends if, before the death of the deceased, the domestic partnership ends otherwise than by the death of the parent. That is, if the domestic partnership ends by complete separation, or what might loosely be called dissolution.

But, if the domestic partnership remains undissolved at the time of death of the natural parent, again by analogy with the position at common law, the relationship of affinity between stepparent and stepchild continues.

Thus the plaintiff in this proceeding is an eligible person.

Background

The deceased was born on 10 February 1938 and died on 17 January 2016. The deceased made his last will on 27 January 2004. Probate of the will was granted to the defendant on 7 March 2016. The total net value of the estate at that time was $959,957.10. The deceased never married and had no natural children.[2]
[2]The phrase ‘natural children’ is used throughout this judgment because it is the language of s 90 of the Act. It’s more modern equivalent is ‘biological’ or ‘birth’ children.

The plaintiff’s mother, Valerie Grace Homes, was the domestic partner of the deceased for a period of over 40 years between 1960 until Ms Holmes’ death on 26 October 2001. Ms Holmes was survived by her daughter, the plaintiff, who was born on 16 December 1939.

Following Ms Holmes’ death, the deceased entered into a relationship with Margaret Rooke and left his entire estate to her.

The plaintiff asserts that the distribution of the deceased’s estate did not adequately provide for her as the deceased’s stepchild. She gives evidence in her affidavit in support of this application of a long and loving relationship including evidence of promises or assurances made by the deceased to her that he would leave his estate to her.[3] Another affidavit filed by Lynne Field affirms that the deceased had stated to her that he would leave everything to the plaintiff and that she would be financially looked after.[4]
[3]Affidavit of Laurace Bail sworn 14 July 2016.
[4]Affidavit of Lynne Field filed 29 July 2016.

Applicable Law

Eligibility for family provision under Part IV of the Act has recently undergone sweeping changes.[5] The new provisions apply in respect of the estate of any person who dies on or after the commencement of Part 2 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014,[6] being 1 January 2015.[7] The amendments create new eligibility requirements for family provision claims by specifying the classes of persons eligible to apply for family provision. Only an applicant that falls within one of the categories of eligible claimant classes can make a claim.
[5]Justice Legislation Amendment (Succession and Surrogacy) Act 2014, s 2(1).
[6]Section 101 of the Act.
[7]Victorian Government Gazette S400, 29 October 2014, p 2.

Section 90 of the Act now includes the following relevant definitions:

In this Part unless inconsistent with the context or subject–matter—
eligible person means –
(a)a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death;
(b)a child of the deceased, including a child adopted by the deceased who, at the time of the deceased’s death, was –
(i)under the age of 18 years; or

(ii) a full-time student aged between 18 years and 25 years; or
(iii) a child with a disability;
(c)a stepchild of the deceased who, at the time of the deceased’s death, was –
(i)under the age of 18 years; or

(ii)       a full-time student aged between 18 years and 25 years; or
(iii)      a stepchild with a disability;
(d)a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased’s death, was –
(i)        under the age of 18 years; or
(ii)       a full-time student aged between 18 years and 25 years; or
(iii)      a child with a disability;
(e)a former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death –
(i)would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and

(ii)       has either –
(A)      not taken those proceedings; or
(B)      commenced but not finalised those proceedings; and
(iii)is now prevented from taking or finalising those proceedings because of the death of the deceased;

(f)a child or stepchild of the deceased not referred to in paragraph (b) or (c);
(g)a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in (d);
(h)a registered caring partner of the deceased;
(i)a grandchild of the deceased;
(j)a spouse or domestic partner of a child of the deceased (including a stepchild or person referred to in paragraph(d) or (g)) if the child of the deceased dies within one year of the deceased’s death;
(k)a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;

Section 3 of the Act, the general definition section, also includes relevant definitions. So far as relevant, s 3 provides:

(1) In this Act unless inconsistent with the context or subject-matter–
domestic partner of a person who dies means a registered domestic partner or an unregistered domestic partner of that person.
registered domestic partner of a person who dies means a person who, at the time of the person’s death, was in a registered domestic relationship with the person within the meaning of the Relationships Act 2008;
unregistered domestic partner of a person who dies means a person (other than a registered domestic partner of the person) who, although not married to the person—
(a)was living with the person at the time of the person’s death as a couple on a genuine domestic basis (irrespective of gender); and

(b) either—
(i)had lived with the person in that manner continuously for a period of at least 2 years immediately before the person’s death; or
(ii)is the parent of a child of the person, being a child who was under 18 years of age at the time of the person’s death.

…
(3)For the purposes of the definition of unregistered domestic partner in subsection (1), in determining whether persons were unregistered domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

The Status of Children Act 1974 (Vic) (‘SCA’) removes the legal disabilities of children born out of wedlock. Section 3(1) provides that:

(1)For all the purposes of the law of Victoria the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other and all other relationships shall be determined accordingly.
…

(4)This section shall apply in respect of every person, whether born before or after the commencement of this Act, whether born in Victoria or not, and whether or not his father or mother has ever been domiciled in Victoria.

Subject to certain requirements, s 90A of the Act provides that an application for a family provision order may be made to the Court by, or on behalf of, an eligible person.

Section 91(1) empowers the Court to order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.

Section 91(2) of the Act provides that the Court must not make a family provision order under subsection (1) unless satisfied of certain mandatory factors. That sub-section provides:

(2)The Court must not make a family provision order under subsection (1) unless satisfied—
(a)that the person is an eligible person; and
(b)in the case of a person referred to in paragraphs (h) to (k) of the definition of eligible person, that the person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support; and
(c)that, at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
(d)that the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by—
(i)        the deceased’s will (if any); or
(ii)       the operation of Division 6 of Part I; or
(iii)      both the will and the operation of Division 6 of Part I.

Sub-sections 91(4) and (5) then set out mandatory requirements to be taken into account in determining the amount of any family provision ordered:

(4)In determining the amount of provision to be made by a family provision order, if any, the Court must take into account—
(a)the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and
(b)the degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person; and
(c)in the case of an eligible person referred to in paragraph (f) or (g) of the definition of eligible person, the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person’s proper maintenance and support; and
(d)in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of eligible person, the degree to which the eligible person was wholly or partly dependent on the deceased for the eligible person’s proper maintenance and support at the time of the deceased’s death.

(5)The amount of provision made by a family provision order—
(a)must not provide for an amount greater than is necessary for the eligible person’s proper maintenance and support; and
(b)in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of eligible person, must be proportionate to the eligible person's degree of dependency on the deceased for the person’s proper maintenance and support at the time of the deceased’s death.

The Court is required also to consider both mandatory and discretionary factors in making a family provision order. Section 91A(1) sets out the mandatory factors to which the Court must have regard to, including the deceased’s will (if any),[8] any evidence of the deceased’s reasons for making the dispositions in the will (if any)[9] and any other evidence of the deceased’s intentions in relation to providing for the eligible person.[10] Section 91A(2) sets out the discretionary factors.
[8]Section 91A(1)(a) of the Act.
[9]Section 91A(1)(b) of the Act.
[10]Section 91A(1)(c) of the Act.

The Court places itself in the position of the testator. The applicable test is of a wise and just testator, rather than a fond and foolish one.[11] The wise and just testator is to be judged according to current community standards.[12] However, it is not for the Court to rewrite the will by reference to abstract considerations of fairness.[13]
[11]Bosch v Perpetual Trustee Company [1938] AC 463, 478.
[12]McKenzie v Topp [2004] VSC 90 [58]; Poole v Barrow [2014] VSC 576.
[13]Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales [1962] HCA 19; (1962) 107 CLR 920, 19; Downing v Downing [2003] VSC 28 citing Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1, 20.

Defendant’s Submissions

The defendant’s written submissions[14] contend that the plaintiff is not an eligible person able to make a claim under the Act because the deceased and the plaintiff’s mother were never married. The steps in the defendant’s reasoning are as follows:
[14]Dated 23 July 2016 (‘Defendant’s Submissions’).

(a) the Act contains no definition of stepchild (nor any definition of stepparent, stepson or stepdaughter);

(b) it is therefore necessary to look to the natural and ordinary meaning of the term ‘stepchild’;

(c) the Oxford English Dictionary contains no definition of ‘stepchild’ but defines ‘stepdaughter’; as ‘a daughter, by a former marriage, of one’s husband or wife’. ‘Stepson’ is defined mutatis mutandis. Similarly, ‘stepfather’ is defined as ‘the husband of one’s mother by a subsequent marriage’, and ‘stepmother’ accordingly;

(d) intrinsic in all of these definitions is that the relationship between the natural parent and the stepparent is one of marriage;

(e) the deceased and the plaintiff’s mother were never married; and

(f) it follows that the plaintiff cannot be a stepchild of the deceased.

The defendant submits in the alternative that even if the relationship of domestic partner between the deceased and Ms Holmes resulted in the plaintiff being the deceased’s stepchild, this status was extinguished upon Ms Holmes’ death.[15] Upon her mothers’ death, the plaintiff’s status is no higher than former stepdaughter, and as such, she cannot appropriately be categorised as an eligible person.
[15]Defendant’s Submissions, [13] and [26].

The defendant refers to several decisions that, although not decisive of the interpretation advanced, are of assistance as they show that the ordinary and natural meaning of the term ‘stepchild’ is that the parent of the child is married to the putative stepparent and that it does not survive the dissolution of that marriage. I will deal with the decisions when considering the matter.

Plaintiff’s Submissions

The plaintiff’s written submissions contend that a child of a domestic partner of a deceased can be categorised as a stepchild and thus, under paragraph 90(c) or (f) of the Act, be an ‘eligible person’.

The plaintiff submits that the Act offers little guidance and falls short in precisely defining stepchild,[16] and it is therefore necessary to consider the context of the legislation and its general purpose and policy.[17] Initially, proposed amendments to the Act excluded stepchildren but then re-included them broadly.[18] The plaintiff argues that the law has modernised to an extent that it is accepted that a domestic partner occupies a similar, if not identical, status to that of a marriage. The plaintiff says that any view to the contrary is out of touch with broader community attitudes.[19]
[16]Plaintiff’s Submissions, [6].
[17]Plaintiff’s Submissions, [4].
[18]Plaintiff’s Submissions, [6]. I find, however, no support for this in the Bill as introduced into the Legislative Council nor as it was subsequently amended in the Committee stage.
[19]Plaintiff’s Submissions, [13].

The plaintiff referred to the proper approach to statutory construction,[20] and that it should commence with a consideration of the text itself, which may require consideration of the context, including the general purpose and policy of the legislation[21] rather than impute to the legislature the Court’s own idea of desirable policy.[22]
[20]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27.
[21][2009] HCA 41 at [47].
[22]Australian Education Union v Department of Education & Children’s Services (2012) 86 ALJR 217; 285 ALR 27; [2012] HCA 3, French CJ, Hayne, Kiefel and Bell JJ at [28].

The plaintiff submits that it would be a mischief to exclude a child of the deceased’s domestic partner from the meaning of stepchild because there has been no formal marriage.[23] This exclusion is said to be arbitrary and cannot be the intention of the legislation, where the section is guided by a moral duty that pervades and guides its construction.[24] The plaintiff submits that the necessary consideration is whether a stepchild has been treated as a child and has become part of the family unit.[25] The plaintiff submits that there is no basis in policy or purpose to exclude a child of a domestic partner of a deceased as the Act contains provisions in s 91(4) that determine whether the child meets these requirements prior to seeking provision.
[23]Plaintiff’s Submissions, [11] and [13].
[24]Plaintiff’s Submissions, [7]–[9].
[25]Plaintiff’s Submissions, [10].

The plaintiff further submitted that:

(a) the defendant’s construction of eligible person reads an extra word into the statute, that stepchildren arise only out of a married relationship;[26]

(b) on a remedial approach to statutory interpretation, inclusion in the class is encouraged; and

(c) the defendant’s definition of stepchild is impermissibly discriminatory and points to the SCA whereby all children are held to be equal irrespective of whether the father and mother are, or have been, married to each other and all other relationships are determined accordingly.[27]

[26]Plaintiff’s Submissions, [20].

[27]Plaintiff’s Submissions, [22].

Further Material

In the course of considering the submissions and the cases advanced by the parties, it was discovered that the Explanatory Memorandum accompanying the Justice Legislation Amendment (Succession and Surrogacy) Bill (‘Explanatory Memorandum’) contained an important piece of extrinsic material relevant to the meaning of stepchild. In addition, I identified further decisions referred to in the reported authorities advanced by the parties which were relevant to the question of when a stepchild ceased to be a stepchild, a matter critical to the issue in the application.

I therefore put to the parties the following matters and questions:

In the process of considering his reasons, his Honour has identified that in the Explanatory Memorandum for the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 (attached), there is a reference at page 3, in parenthesis after paragraph (c) of the definition of eligible person as follows ‘noting that a stepchild is not limited to a deceased’s spouse but also includes a child of the deceased’s domestic partner.’ The question is whether this assists in the interpretation of the meaning of stepchild under the Act.
His Honour also notes that in the reasons of Deane J in Re Cook (attached at page 262-3) the common law position as stated in relation to the stepchild of a marriage is that if the marriage remained undissolved at the time of death of the natural parent, the relationship of affinity between stepparent and stepchild will continue. Why does this not provide an analogy to the position of the stepchild of a domestic partnership?
The position in Re Burt, referred to in the submissions, is largely based upon the decision in Brotherhood of Locomotive Firemen and Enginemen v Hogan (1934) 5 Fed Supp 598 and Mander v O’Toole [1948] NZLR 909 (both attached). Those decisions have been substantially affected by the decision Re Bordeaux’ Estate (1950) 37 Wash 2d 561 (attached). The effect of the decision in Re Bordeaux is to confirm the position stated by Deane J in Re Cook and referred to above. The question is whether the common law position that applies to the stepchild of a marriage should by analogy apply to the stepchild of a domestic partnership.

Further Submissions

The plaintiff filed further written submissions.[28] Her counsel contends, in summary: as I understand the submissions:
[28]Plaintiff’s further Submissions dated 16 September 2016.

(a) by s 36(3D) of the Interpretation of Legislation Act 1984 (‘Interpretation Act’), the explanatory memorandum ‘printed with an Act or subordinate instrument before the title of the Act or subordinate instrument does not form part of the Act or subordinate instrument’;

(b) statements as to legislative intention made in explanatory memoranda or by ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning;[29]
[29]Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31].

(c) the construction of the text of the Act must be exhausted before extrinsic aids to construction are used;[30]

(d) the Explanatory Memorandum in this case is helpful as, after exhausting the construction of the text, in its context, having regard to the purpose of the legislation, there is still doubt as to the meaning of stepchild in the definition of eligible person; and

(e) the decision of the Supreme Court of Washington, en banc, in In Re Bordeaux assists in the determination of when stepchildren of a marriage cease to be in a relationship of affinity with their stepparent. That is a more authoritative and persuasive analysis of the origin and justification of the common law rules than the decisions in Brotherhood of Locomotive Firemen and Enginemen v Hogan and Mander v O’Toole. It is also consistent with the statement of the law by Deane J in Re Cook.[31] That statement of the rule should be applied by analogy to the position of stepchildren of a domestic partnership.

[30]JJ Richards & Sons Pty Ltd v Fair Work Australia [2010] FWAFB 9963 at [33]. But see JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 (Jessup, Tracey and Flick JJ).

[31]Re Cook & Anor; Ex parte C & Anor (1985) 156 CLR 249 (‘Re Cook’).

The defendant also filed written submissions[32] that contend, in summary, as I understand the submissions:
[32]Defendant’s further Submissions dated 19 September 2016.

(a) the decisions to which he was directed have a common thread, they are all premised on the valid marriage of the parent and the stepparent and they all recognise the ‘plurality’ of views that the relationship ends when the marriage ends, whether by divorce or death, depending on the context in which the question arises;

(b) if the modern view that a stepchild relationship does not end with death, or dissolution of the relationship, were to apply, then in every case where a couple had lived together as domestic partners for at least two years, notwithstanding that their relationship had ended, they might leave behind a trail of stepchildren. Those who enjoy serial de facto relationships[33] might end up with an alarming array of stepchildren in their wake;
[33](of at least two years in duration).

(c) it is obvious that this was not intended by Parliament, and it is not the law. It is contrary to binding appellate decisions in Re Burt and Popple v Rowe. Every decision of trial and appellate courts is to the effect that the stepchild relationship is predicated upon a valid marriage. Children are not to be equated with stepchildren in the current legislation as a matter of proper statutory construction because the task of the Court is to find the meaning of stepchild in its ordinary and natural sense, read in context;[34]
[34]Amalgamated Society of Engineers v Adelaide Steamship Co Ltd. [1920] HCA 54; (1920) 28 CLR 129 at 161.

(d) mere inconvenience of result is itself not a ground for departing from the natural and ordinary sense of the language read in context. But there are cases in which inconvenience or improbability of result assists the Court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning, because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.[35] That is not this case because the suggestion in the Explanatory Memorandum that a deceased’s stepchild is ‘not limited to a deceased’s spouse, but also includes a child of the deceased’s domestic partner’, misunderstands the ordinary and natural meaning of stepchild, which is the legal meaning, and is thus simply wrong!
[35]Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] HCA 26; (1981) 147 CLR 297, 320.

(e) the Explanatory Memorandum is not a part of the Act and does no more than assist a person reading the Bill to understand what the Bill does. It is not there to expand or modify the legislation, namely the words actually enacted by Parliament;[36]
[36]The Legislative Process, published by the Office of the Chief Parliamentary Counsel, LegislativeProcessHandbook24July2012/$File/LegislativeProcessHandbook24July2012.pdf

(f) the Explanatory Memorandum says that the Bill implements a number of recommendations from the Victorian Law Reform Commission[37] report entitled ‘Succession Laws’ (‘VLRC Report’). At least in relation to the proposition at hand, this is not correct. VLRC Recommendation 38(c)[38] is that eligible persons should include ‘a child of the deceased person’; and footnote 156 to the word ‘child’ is as follows:
[37](‘VLRC’).
[38]Page 114 of the August 2013 Report.

The New South Wales legislation further defines ”child” in relation to a de facto or domestic relationship: Succession Act 2006, (NSW) s. 57(2). Consideration would need to be given to the definition of ‘child’ in Victoria in these circumstances.

(g) recommendation 38(g) of the VLRC Report simply recommends that eligible persons include ‘a stepchild of the deceased person’. No further consideration was included in the VLRC Report in the legislation about whether a child of a de facto marriage relationship was to be an eligible applicant;

(h) whatever the author of the Explanatory Memorandum may have thought, intended or believed that the Bill might do, the fact of the matter is that the enacted legislation did not deal with the possibility of children of a de facto marriage relationship being equated with stepchildren, as that expression has been consistently applied in decisions in many and varied jurisdictions, and, significantly, by the Court of Appeal in Victoria; and

(i) if the author’s mistaken assumption in the Explanatory Memorandum that a ‘stepchild’ includes a child of a deceased person’s domestic partner, had actually found its way into the legislation, that would have been different. Even if unintended, it would have altered the law. But it did not!

Consideration
Introduction

The primary question for consideration is whether the plaintiff can appropriately be categorised as an eligible person pursuant to s 90 of the Act. By s 91 of the Act, if the plaintiff does not fall within a category of eligible person, her claim cannot be considered and must be dismissed. In construing the applicable paragraph of definitions of ‘eligible person’ in s 90 of the Act it is necessary to do so in the context of Part IV as a whole (and indeed the entire Act).

The first thing I should observe is that there is no dispute for present purposes that the plaintiff’s mother was the domestic partner of the deceased until her death in 2001. The plaintiff is over 25 years of age and does not claim to have a disability, so the only possible applicable paragraph of the definition of eligible person in s 90 is paragraph (f), which defines an eligible person as a child or stepchild of the deceased not referred to in paragraph (b)[39] and (c).[40] It is not suggested that the plaintiff falls within paragraphs (d), (g) or (k).[41]
[39]Which relates to children under 18, or who are full time students between 18 and 25 or who have a disability.
[40]Which relates to stepchildren under 18, or who are full time students between 18 and 25 or who have a disability.
[41]The plaintiff’s Originating Motion does not identify the paragraph under which the plaintiff claims to be an eligible person.

In the leading case of Cooper Brookes, Mason and Wilson JJ said:

[t]he fundamental object of statutory construction in every case is to ascertain the legislative intention … The rules [of interpretation] … are no more than rules of common sense, designed to achieve this object.[42]

[42]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 (Mason and Wilson JJ).

To the same effect, Gleeson CJ has said that ‘the object of a court is to ascertain, and give effect to, the will of Parliament.’[43] It follows that:

[j]udicial exposition of the meaning of a statutory text is legitimate so long as it is an exercise … in discovering the will of Parliament: it is illegitimate when it is an exercise in imposing the will of the judge.[44]

[43]Wilson v Anderson (2002) 213 CLR 401, 418.

[44]Murray Gleeson, ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’ (2009) 20 Public Law Review 26, 27; Richard Elkins & Jeffrey Goldsworthy, ‘The Reality and Indispensability of Legislative Intentions’ [2014] 36:39 Sydney Law Review 39, 40.

The discovery of the legislative intent, however, is an objective process ascertained by interpreting the statute.[45] That is, the objective intention of the legislation is revealed by its proper construction.[46] The reach and operation of the law is determined by reference to the language, purpose and scope of the law, viewed as a whole within its context, as well as by reference to considerations of consistency and fairness.[47] The plurality of the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue summarised the approach as follows:[48]
[45]Wenn v Attorney-General (Vic) (1948) 77 CLR 84, 122 (Dixon J); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 [31]; Momcilovic v The Queen (2011) 245 CLR 1, 136 [327] (Hayne J) (‘Momcilovic’).
[46]Momcilovic, 136 [327] (Hayne J).
[47]Momcilovic, 133 [315] (Hayne J), referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-2 [69]-[70] (‘Project Blue Sky’).
[48](2009) 239 CLR 27; [2009] HCA 41, [47] (Hayne, Heydon, Crennan and Kiefel JJ).

(a) the task of statutory construction must begin with a consideration of the text itself;[49]
[49]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49 [9]; (2001) 207 CLR 72 (Gaudron, Gummow, Hayne and Callinan JJ), [46] (Kirby J); Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) [2005] HCA 58, [30]; 224 CLR 193 (Gleeson CJ, Gummow, Hayne and Heydon JJ), [167]-[168] (Kirby J); Carr v Western Australia (2007) [2007] HCA 47; 232 CLR 138 at [6] (‘Carr’) (Gleeson CJ); Director of Public Prosecutions (Vic) v Le (2007) [2007] HCA 52, [85]; 232 CLR 562 (Kirby and Crennan JJ); Northern Territory v Collins; [2008] HCA 49, [99]; (2008) 235 CLR 619 (Crennan J).

(b) historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text;[50]

(c) the language which has actually been employed in the text of legislation is the surest guide to legislative intention;[51] and

(d) the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision,[52] in particular the mischief it is seeking to remedy.[53]

[50]Nominal Defendant v GLG Australia Pty Ltd (2006) [2006] HCA 11, [22]; 228 CLR 529 (Gleeson CJ, Gummow, Hayne and Heydon JJ), [82]-[84] (Kirby J). See also Combet v Commonwealth [2005] HCA 61, [135]; (2005) 224 CLR 494 (Gummow, Hayne, Callinan and Heydon JJ); Northern Territory v Collins [2008] HCA 49, [99]; (2008) 235 CLR 619 (Crennan J).

[51]Hilder v Dexter [1902] AC 474, 477-478 per Earl of Halsbury LC.

[52]Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390, 397 (Dixon CJ), quoted with approval in Project Blue Sky at [69] (McHugh, Gummow, Kirby and Hayne JJ).

[53]Re Heydon’s Case (1584) 3 Co Rep 7a at 7b ; 76 ER 637 at 638.

It is also important to note the terms of s 35 of the Interpretation Act which provides that in the interpretation of a provision of an Act or subordinate instrument:

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object;

(b) consideration may be given to any matter or document that is relevant including but not limited to:

(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;

(ii) reports of proceedings in any House of the Parliament;

(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and

(iv)reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.

The requirement to look to the purpose or object of an Act is more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction and s 35 of the Interpretation Act requires no ambiguity or inconsistency in a statutory provision before a court is not only permitted, but required to have regard to purpose.[54]
[54]Mills v Meeking (1990) 169 CLR 214 at 235. See Also Tracey J in JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53, [52] and the cases there cited.

The Text and Context

It is mandatory that an applicant under Part IV of the Act establish that he or she is an eligible person. It is a threshold question which opens the door to a second level of mandatory factors to be satisfied as set out in paragraphs 91(2)(b) to (d) of the Act. An eligible person may still fail to establish an entitlement to further provision because, for example, of a finding that at the time of the deceased’s death they had no moral duty to provide for the eligible person’s proper maintenance and support. But this second level will usually require a trial, or at least a more extensive consideration of the evidence than on a summary dismissal application.

As the Act includes no definition of a stepchild and provides limited guidance as to the meaning of the term, whether a child of the domestic partner of the deceased can be a stepchild turns, in the first place, on the natural and ordinary meaning of the term. The following are the dictionary meanings:

(a) the Oxford English Dictionary defines stepchild as meaning, so far as presently relevant, a stepson or stepdaughter. A stepdaughter is defined as a daughter, by a former marriage, of one’s husband or wife, and a stepson as a son, by a former marriage, of one’s husband or wife; [55]
[55]The Oxford English Dictionary, 1933 (corrected and re-issued in 1970), Volume X, Clarendon Press. The supplement published in 1975 adds nothing.

(b) the New Shorter Oxford Dictionary defines stepchild as a stepson or stepdaughter. A stepdaughter is defined as a daughter, by another marriage or relationship, of one’s husband or wife or loosely the person with whom one lives as if married. Stepson is defined similarly. A stepparent is a stepfather or stepmother. A stepfather is the husband of one’s mother by another marriage, loosely, the man with whom one lives as if married. The prefix ‘step’ forms words that denote a person in a familial relation but unrelated biologically, originally through a marriage of or with a widower or widow with one or more children, later through any marriage or marital relationship[56] between persons either or both of whom have a child or children by another partner;[57]
[56]Marital is defined as of or pertaining to marriage or the relationships between (people living as) husband and wife.
[57]The New Shorter Oxford English Dictionary, Volume 2, N-Z, Clarendon Press, 1993.

(c) the Macquarie Dictionary definition of stepchild is a child of a husband or wife by a former union. The relevant definition of ‘union’ is ‘a uniting or being united in marriage, or some similar relationship.[58] It is important to recognise that by this meaning the parent and the putative stepparent should be married, whilst the person who is the putative stepchild might be the child of a former marriage or some similar relationship;

(d) the Macquarie Dictionary also defines the prefix ‘step‘ as indicating a connection between members of a family by the remarriage of a parent, and not by blood. ‘Marriage’ is defined as the legal union of a man with a woman, state or condition of being married, the legal relation of spouses to each other; wedlock;[59] and

(e) Black’s Law Dictionary definition of stepchild is the child of one’s spouse by a previous marriage. The definitions of stepfather and spouse follow accordingly. Marriage is defined as the legal union of a man and a woman as husband and wife. The expression ‘common‑law marriage’ is separately defined as a marriage that takes effect, without licence or ceremony, when two people capable of marrying live together as husband and wife, intend to be married, and hold themselves out to others as a married couple.[60]

[58]The Macquarie Dictionary, sixth Edition, 2013.

[59]Ibid.

[60]Black’s Law Dictionary, Eighth Edition, Thomson West, 2004.

It can be seen that from the revised 1933 Oxford English Dictionary definition to the 1993 New Shorter Oxford English Dictionary that there is a shift, at least in the use of the word ‘loosely’, from the requirement of marriage to marriage or a relationship akin to marriage. The Macquarie Dictionary, however, maintains the requirement of marriage between the parent of the putative stepchild and the putative stepparent.

There is therefore some support for the natural and ordinary meaning of stepchild to refer to a child of a person in a domestic relationship with the deceased who was not formally married to the deceased (‘the wider meaning’). That is, providing that wider meaning is not, as the Court of Appeal described it in Popple v Rowe,[61] properly described as ‘popular, loose and flexible’, and a meaning that the legislature should not be taken to intend. As Brooking JA expressed this point:

It is not to be expected that, in a statute authorising judicial interference with the distribution of estates effected by will or by the operation of the law concerning distribution on intestacy, Parliament, in enabling applications to be made by the deceased’s ‘widow widower or children’, would use those expressions as popular, loose and flexible ones. For if the word ‘children’ is used loosely, then presumably ‘widow’ and ‘widower’ are also … used as vague and inexact terms, and the inquiry will there be, not whether the person concerned survived the deceased, having been the spouse of the deceased at the time of death (I ignore the vexed question whether one who has remarried remains a widow or widower), but whether the person concerned may ”fairly be regarded” as the widow -- or widower -- of the deceased.

[61][1998] 1 VR 651, 653 (‘Popple’).

Unless there is some firm indication in the extrinsic materials to which s 35 of the Interpretation Act permits consideration, the approach adopted in Popple suggests that it is not appropriate to adopt the wider meaning because it is classed as ‘loose’ by the New Shorter Oxford English Dictionary. But if it is assumed that the proper characterisation of the wider meaning of stepchild is not a ‘loose’ meaning, or is one that is indicated in extrinsic materials, what other provisions in the Act might support the wider meaning?

The first thing to notice is that ‘eligible person’ is defined at paragraph 90(a) of the Act as a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death. Thus, the legislature recognises the eligibility of an unmarried domestic partner, providing this relationship was such at the date of the deceased’s death.

In this regard, it is also relevant to notice, as I have set out above, that the Act defines ‘domestic partner’ of a person who dies, as either a registered domestic partner or an unregistered domestic partner. A registered domestic partner of a person who dies is a person who, at the time of the person’s death, was in a registered domestic relationship with the person within the meaning of the Relationships Act 2008. There is no evidence that the plaintiff’s mother was ever in a registered domestic relationship with the deceased, and certainly could not have been at the date of death of the deceased.

Similarly, an unregistered domestic partner of a person who dies is defined as a person who, although not married to the deceased, was living with the deceased at the time of death as a couple on a genuine domestic basis (irrespective of gender) and either lived with the person in that manner continuously for a period of at least two years immediately before the deceased’s death or is the parent of a child of the deceased, being a child who was under 18 years of age at the time of the deceased’s death.

The definition of ‘eligible person’ in s 90 of the Act lists the classes of eligible persons in a hierarchy of sorts. Importantly, there is no distinction made between a spouse or domestic partner. They are considered by the legislature to be equal in their eligibility. This presumably aims to give effect to societal attitudes that married and unmarried couples are afforded the same, or near identical rights.

These considerations indicate an intent on the part of the legislature to embrace a more modern meaning of the word stepchild as including a child of a person who is the deceased’s unmarried domestic partner. In short, a wider meaning of stepchild gains some support from the inclusion of domestic partners as eligible persons.

The above consideration of text and context of the provisions of Part IV of the Act provide some support for the wider meaning of stepchild. There is also the legislative history leading to the prescription by the legislature of the eligible persons and a number of authorities, some to which the parties referred, that bear upon the meaning to be attributed to stepchild.

The Mischief Rule – does it help?

The plaintiff relies on the application of the ‘mischief’ rule to argue that she is a stepchild. The plaintiff’s submissions are effectively that the word stepchild ought to be construed widely to include the child of a parent in a domestic relationship with the deceased, or who was at some earlier time in that relationship with the deceased.

This is advanced because the legislation is remedial in nature and should be given a liberal construction in order that its fundamental purpose of ensuring that eligible persons within the deceased’s family who have a legitimate claim upon their bounty are adequately maintained. The plaintiff contends that as the word stepchild is not defined in the Act, it is for the courts to determine its proper meaning according to its context and the surrounding circumstances. The fact that there is eligibility made for stepchildren in the Act, in addition to spouses and domestic partners, indicates that these words are sufficiently flexible to include stepchildren of a domestic partnership. The plaintiff also contends that the stepchild-stepparent relationship does not simply end because the domestic relationship giving rise to it was terminated by Ms Holmes’ death.

The history of the legislation bears upon the identification of the mischief sought to be addressed by the re-introduction of category based eligibility.

The History of the Provisions

There are a number of authorities in which the history of the legislation has been considered, including Popple, and the decision of Bell J in Whitehead v State Trustees Limited.[62] A broad outline is set out in the following paragraphs.
[62][2011] VSC 424 (‘Whitehead’).

Family provision was introduced into Victoria by the Widows and Young Children Maintenance Act 1906. This allowed the widow or children of a testator and the children of a testatrix to apply for provision. Children were defined as not including any person being a male who was over 18 years of age or being a female who was over 21 years of age or married.[63]
[63]Popple at 655.

Two relevant changes were made by the Administration and Probate (Testator’s Family Maintenance) Act 1937. The first was the repeal of the definition of children, with the result that children became entitled to apply regardless of their age or (in the case of females) marital status. The second change was to add widowers to the category of persons entitled to apply. The phrase used in defining eligibility was ‘widow, widower or children.’[64]
[64]Ibid.

Two further changes were made by the Administration and Probate (Family Provision) Act 1962. The first was the defining of ‘widow’ for the purposes of s 91 as including any former wife of the deceased who was at the date of his death in receipt of or entitled to receive payments of alimony or maintenance whether pursuant to a court order or otherwise. The second change made was to define ‘children’ for the purposes of s 91 of the Act as including illegitimate children of the deceased totally or partially dependent on or supported by the deceased immediately before his death or in respect of whom there was in force against the deceased any order for the payment of maintenance or confinement expenses. This second definition was overtaken and amended by the SCA.[65]
[65]Ibid.

The entitlement of children the subject of an adoption order to make a claim under Part IV has always depended on the terms of the legislation dealing with adoption, namely, the Adoption Act1984.[66]
[66]Ibid and see Dehnert v Perpetual Executors & Trustees Association of Australia Ltd (1954) 91 CLR 177; Re S.; H. v T. [1975] V.R. 47.

Then came a radical departure from the category based eligibility of ‘widow, widower or children’ to the discretionary based criterion introduced by Part 7 of the Wills Act 1997 (Vic). Section 91(1) set out the primary criterion by reference to the claimant being ‘a person for whom the deceased had responsibility to make provision’.

Bell J traces the genesis of this test in his reasons for decision in Whitehead.[67]It is sufficient to observe that in the second reading speech of the Attorney-General in relation to the amending legislation, she:
[67][2011] VSC 424 [21]-[29].

(a) criticised the existing category-based provisions as being ‘quite restrictive, excluding the ability of other persons who may have a moral claim on the deceased’s estate from making a claim’;[68]
[68]Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 436 (Jan Wade).

(b) described the amendments as being designed ‘to enable a wider group of people to apply to the court for testator’s family maintenance’;[69]

(c) said that the legislation did ‘not include a list of eligible applicants for testator’s family maintenance, instead leaving it to the court to determine on a case-by-case basis whether provision should be made for a particular applicant, which is a more equitable method of dealing with testator’s family maintenance applications’;[70] and

(d) referred to the list of factors which the court was required to take into account ‘in determining whether or not provisions should be made for a particular applicant.’[71]

[69]Ibid.

[70]Ibid.

[71]Ibid.

The most recent change back to category based eligibility is a radical reversal of the ‘responsibility’ basis. The amendments made by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, followed a report in August 2013 of the VLRC Report, the Commission noted:

6.8In the course of this reference, the Commission has heard a number of criticisms about the operation of family provision law in Victoria. The Commission identified several in its consultation paper on family provision:
(a)a belief that the current law encourages opportunistic or non-genuine claims;
(b)the high legal costs in family provision proceedings and the fact that they are often borne by the estate, even where a family provision claim fails;
(c)the settlement of a high proportion of claims that may not otherwise have succeeded at trial;
(d)the fact that, due to the high rate of settlement, the courts have little oversight over costs in family provision matters;
(e)the lack of certainty that exists in this jurisdiction and the difficulties experienced by legal practitioners when advising clients about the validity and strength of the claim;
(f)the perception of some members of the public that their will can effectively be challenged by anyone, and that they do not truly have freedom to dispose of their property by will.

The VLRC Report recommended that Victoria should replace its ‘responsibility’ test with an eligibility test, based on the New South Wales test for eligibility, but extended to include stepchildren.[72] To this end, the VLRC recommended that s 91(1) of the Act should be repealed and replaced with provisions in the following terms (including footnotes):
[72]Recommendation 38.

The following are eligible persons who may apply to the court for a family provision order in respect of the estate of a deceased person:
(a)a person who was the wife or husband of the deceased person at the time of the deceased persons’ death;
(b)a person with whom the deceased person was living in a registrable domestic relationship[73] or registered domestic relationship at the time of the deceased person’s death;
[73]The New South Wales legislation uses the terminology ‘de facto relationship’, as defined in the Interpretation Act 1987 (NSW): Succession Act 2006 (NSW) s 57(1)(b). This is the terminology also used in the Property (Relationships) Act 1984 (NSW). The Commission considers it appropriate to use the Victorian equivalents from the Relationships Act 2008 (Vic), which are ‘registrable domestic relationship’ and ‘registered domestic relationship’.
(c)a child[74] of the deceased person;
[74]The New South Wales legislation further defines ‘child’ in relation to a de facto or domestic relationship: Succession Act 2006 (NSW) s 57(2). Consideration would need to be given to the definition of ‘child’ in Victoria in these circumstances.
(d)a former wife or husband of the deceased person;
(e)a person:
(i)who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii)who is a grandchild of the deceased person or was, at that particular time or any other particular time, a member of the household of which the deceased person was a member

(f)a person with whom the deceased person was living in a registrable caring relationship or registered caring relationship[75]
(g)a stepchild of the deceased person.

[75]The New South Wales legislation uses the terminology ‘close personal relationship’: Succession Act 2006 (NSW) s 57(1)(f). This terminology comes from the Property (Relationships) Act 1984 (NSW) s 5. The Commission considers it appropriate to use the Victorian equivalent from the Relationships Act 2008 (Vic), which are ‘registrable caring relationship’ and ‘registered caring relationship’.

It is simply not known whether the framers of the legislation took up the suggestion of the VLRC to give consideration to defining ‘child’ in Victoria in the circumstance that the New South Wales legislation defines ‘child’ in relation to a de facto or domestic relationship. What is clear is that the legislature did not define child, presumably because of the provisions in the SCA, and did take up the recommendation of the Commission to specifically include stepchildren, but without any definition.

The Explanatory Memorandum tabled at the time of introduction of the Bill into the Legislative Council, and after the Bill went through amendment in the Committee stage, included the following in relation to clause 3 of the Bill:

Subclause (2) also inserts a definition of eligible person into section 90, so that eligible person means–
[(a) & (b) not relevant]

(c)a stepchild of the deceased who, at the time of the deceased's death was under the age of 18 years, or was a full-time student between 18 and 25 years, or was a stepchild with a disability (noting that a stepchild is not limited to a deceased's spouse but also includes a child of the deceased's domestic partner); [emphasis added]

In the Second Reading Speech of the Bill for the Act that gave affect to these new amendments and eligibility classes, the Attorney-General referred to the fact that the Bill implements a number of the VLRC’s recommendations from VLRC Report. He said that:[76]

In 1997, the Victorian legislation was amended to remove any requirement for a specific relationship with the deceased, and instead based a person’s entitlements to family provision on demonstrating that the deceased had a responsibility to provide for them. However, the fact that there is no restriction on who can make a claim, together with the broad nature of the test to be applied, has led to a wide range of claims, putting pressure on executors, administrators and other beneficiaries to settle even dubious claims in order to prevent the estate being consumed by legal costs.
To reduce the potential for opportunistic claims, and to better reflect the underlying policy objectives of family provision laws, the bill amends the current family provision scheme to limit who can make a claim on a deceased estate and the grounds on which a claim can be made.
Only specified categories of people will be eligible to make a claim. The deceased’s children and stepchildren, spouses or domestic partners at the time of death and former spouses partners who have not had recourse to the Family Law Act 1975 before the death may apply for a family provision claim as of right. However, the bill makes a distinction between applications brought by a child or stepchild of the deceased who is under 18 or a full-time student up to the age of 25 or who has a disability and, on the other hand, a child or stepchild who does not fall under one of these categories. Most adult children will fall outside these categories. In such cases, in determining the amount of provision, if any, to be ordered, the court must take into account, amongst other things, the degree to which the applicant is not capable, by reasonable means, of providing adequately for their own proper maintenance and support. This is intended to reflect the position that parents should not usually be regarded as having a moral duty to make provision for adult children who are capable, by reasonable means, of providing adequately for their own proper maintenance and support.

[76]Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2014, 3443 (Robert Clark, Attorney-General).

There was debate in the Legislative Council and Assembly about the changes intended to be made by the Bill, and amendments were introduced. These do not touch on the construction in question but one should be mentioned. The amendment introduced into what is now s 91(4) (which specifies matters to be taken into account in determining the amount of any provision) what is now paragraph (c):

(c)in the case of an eligible person referred to in paragraph (f) or (g) of the definition of eligible person, the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support…

Apart from the Explanatory Memorandum, none of the Parliamentary materials bear upon the meaning to be attributed to the term ‘stepchild’, save for the observations in the Assembly of the Member for Shepparton (Mrs Powell) in support of the Bill that:[77]

The categories of people entitled to claim have now been broadened to reflect changing social and family circumstances, and there have been many over the years – same-sex partnerships and stepchildren versus natural children, for example. When families change it challenges what happens in regard to a will – for example, when a husband and wife have divorced and remarried or where there are other children, such as stepchildren. All those people have certain access to a person’s will, and when a person dies, that person needs to make sure that those people are catered for. It is about making sure that those who should be entitled to assets in a will are entitled.

[77]Parliamentary Debates (Hansard), Legislative Assembly, 57th Parliament, First Session, Wednesday 15 October 2014, p. 3655-6. There are also other references in individual speeches of members of the Assembly and the Council to the position of stepchildren, but although they are interesting, even entertaining, they are not helpful to the task of statutory interpretation.

It can be seen from this account of the history that initially the legislation severely restricted those entitled to apply. The extent of the inroad on the power of a person to dispose of their property as they saw fit was confined. With the passing years, the eligibility categories expanded, small step by small step, until the very wide ‘responsibility’ test was introduced in 1997. There were also other controls which limited the success of applicants. However, these were predominantly discretionary factors and did not limit the ability of the person to apply and, in most cases, to avoid summary dismissal. This led to complaints and concerns that too many unmeritorious claims were brought and, to avoid the expense of litigation, were settled by the applicant being ‘paid off’, in effect.

It is therefore clear that the legislature intended to narrow the availability of family provision to the classes of eligible persons. In this respect, the VLRC recommended that the test should be based on the New South Wales test for eligibility, but extended to include stepchildren. The New South Wales cases do not, however, assist in the determination of the breadth of the expression ‘stepchild’.

Family provision legislation has been held to be remedial in character and must be construed as to give the most complete remedy which the phraseology will permit:[78]

In Vigolo v Bostin,[79] Gleeson CJ said the courts ‘have interpreted and applied the legislation by giving it a purposive construction’.[80] That approach to the interpretation of the legislation was again emphasised in Barns v Barns.[81] Gummow and Hayne JJ said ‘the court should not be alert in placing a restricted construction upon the terms of such a law’.[82]

[78]Whitehead v State Trustees Ltd [2011] VSC 424, [33] (Bell J); Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494, 513 (Williams J), citing Holmes v Permanent Trustee Company of New South Wales Ltd (1932) 47 CLR 113, 119 (Rich J, Evatt and McTiernan JJ agreeing). See also Worladge v Doddridge (1957) 97 CLR 1, 9 (Williams and Fullagar JJ).

[79]Vigolo v Bostin (2004) 221 CLR 191.

[80]Vigolo v Bostin (2004) 221 CLR 191, 197.

[81]Barns v Barns (2003) 214 CLR 169, [34] (Gleeson CJ), [44] (Gummow and Hayne JJ), [124] (Kirby J).

[82]Barns v Barns (2003) 214 CLR 169 [44].

Against that proposition is the equally forceful authority that holds that:[83]

But no jurisdiction,[84] and certainly not Victoria, has used family provision legislation to abolish freedom of testamentary disposition. That has been frequently emphasised by the High Court. In Pontifical Society for the Propagation of the Faith v Scales,[85] Dixon CJ said the discretion given to the court was not to ‘re-write the will of a testator’.[86] Freedom of testamentary disposition was not to have ‘only a prima facie effect, the real dispositive power being vested in the court’.[87] In Vigolo v Bostin,[88] Gleeson CJ said the legislation ‘preserved freedom of testamentary disposition, but subjected that freedom to a new qualification’.[89]

[83]Whitehead v State Trustees Ltd [2011] VSC 424, [39].

[84]In Canada, the legislation ‘did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right’: Tataryn v Tataryn [1994] 2 SCR 807, 815 (McLachlin J for the court). In New Zealand, the legislation does not allow the court ‘to make a new will for the testator’ but ‘to alter a testator’s disposition … only so far as it is necessary to provide for the proper maintenance and support of ‘the applicants’: In re Allardice (1910) 29 NZLR 959, 969 (Stout CJ).

[85](1962) 107 CLR 9.

[86]Ibid 19.

[87]Ibid. See also Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134, 146 (Gibbs J).

[88](2004) 221 CLR 191.

[89]Ibid [10].

In the particular context of the issues in this case, the observations of Winneke P in Popple introduce a possible qualification of the principle of beneficial interpretation. It is necessary to understand the context. Dr Hardingham had submitted that because the family provision legislation was remedial in nature, it should be given a wide and liberal construction in order that its fundamental purpose of ensuring that persons within the deceased’s family who have a legitimate claim upon the deceased’s bounty are adequately maintained so that, amongst other things, the word ‘children’ should be accorded a ‘popular and flexible meaning’, (and include stepchildren) consistent with current social conditions, rather than a fixed or technical meaning. Winneke P responded:

It can be accepted that the Family Provision legislation is remedial and that, as a consequence, ‘must be so construed as to give the most complete remedy which the phraseology will permit’: Holmes v Permanent Trustee Co. of N.S.W. Ltd. (1932) 47 C.L.R. 113 at 119; Coates v National Trustees Executors & Agency Co. Ltd. (1956) 95 C.L.R. 494 at 513. The fact, however, that the legislation is remedial in my view requires that the court should be liberal in the exercise of its powers once it determines to exercise the jurisdiction it has in favour of an eligible applicant. It cannot mean, in my opinion, that it is to be benevolent in its interpretation of those who are or may be eligible to make application. Nothing in my view to the contrary emerges from the authorities to which I have referred.

These observations are consistent with those made by Thomas J in Re Burt[90] that:

The answer is to be found as a matter of construction. The fact that the legislation is remedial in character and therefore to be construed beneficially does not call for artificial extensions of the category of persons who are prescribed as eligible for the benefit. The task is to ascertain who has been given the right to apply.

[90][1988] 1 Qd R 23 at 32.

Whether this is the correct approach, or not, there is a clear indication from the text and context of the provisions, considered without reference to extrinsic materials, that the legislature intended that stepchild include the child of a person who is in a domestic relationship with the deceased, at least at the time of the deceased’s death. The Explanatory Memorandum aids this interpretation and dispels any doubts that might linger arising from the fact that in its dictionary meaning, at best, the wider meaning is described as ‘loose’.

As the plaintiff submitted, the Explanatory Memorandum in this case is helpful as, after exhausting the construction of the text, in its context, having regard to the purpose of the legislation, there is still doubt as to the meaning of ‘stepchild’ in the definition of ‘eligible person’. It is accepted by the plaintiff and the defendant that the Explanatory Memorandum is not a part of the Act and does no more than assist a person reading the Bill to understand what the Bill does. It is not determinative of the meaning of the expression ‘stepchild’, and the words of the Explanatory Memorandum cannot be substituted for the text of the law, but it is an aid to its construction.[91]
[91]R v Bolton, Ex parte Beane (1987) 162 CLR 514, 517-8 (Mason CJ, Wilson and Dawson JJ).

In the context of the provisions under consideration, the requirement to look to the purpose or object of an Act, or in this case the particular provisions of the Act, is (as I have said) more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. Section 35 of the Interpretation Act requires no ambiguity or inconsistency in a statutory provision before a court is not only permitted, but required to have regard to purpose.[92]
[92]Mills v Meeking (1990) 169 CLR 214, 235. See Also Tracey J in JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53, [52] and the cases there cited.

The purpose of the paragraphs of the definition ‘eligible person’ that include reference to a stepchild of the deceased is to entrench their eligibility to make a claim. Although the overall purpose of the requirement for eligibility is limiting, the recommendation of the VLRC to include a stepchild is expanding the scope of the definitions as proposed by the Commission. The indications to which I have referred in the text point to the wider meaning. The Explanatory Memorandum clearly shows that the purpose of including stepchild is to expand the width of the ordinary meaning to encompass the wider meaning.

Although it is thus tolerably clear that the legislature intended that a stepchild includes the child of a parent who was in a domestic partnership with the deceased at the date of the deceased death, must that domestic partnership have subsisted up to that time or does a stepchild retain that status if his or her parent dies before the deceased (as in this case) or separates from the deceased before his death? The authorities assist in answering these questions.

In the course of narrowing the ambit of the legislation, and defining the classes of persons who are eligible to apply for family provision, the legislature has shown that it has adopted express legislation so as to include a stepchild as an eligible person, but has done so, in my view, in an incomplete and, perhaps, a diffident manner. That is because there is no indication whether the status of ‘stepchild’ continues after the death of the parent, or the separation of the parent from the stepparent.

Before turning to the authorities, I note that the cognate legislation in Queensland demonstrates how this problem has been dealt with in that State.Part 4 of the Succession Act 1981 (Qld) contains that State’s Family Provision legislation. After considerable litigation (to which some reference is made below), in 1997 the Queensland legislature introduced s 40A to the Succession Act1981 (Qld) and defined ‘stepchild’ in relation to married persons, as follows:

(1) A person is a “stepchild” of a deceased person for this part if –
(a) the person is the child of a spouse of the deceased person; and
(b)a relationship of stepchild and step-parent between the person and the deceased person did not stop under subsection (2).

(2)The relationship of stepchild and step-parent stops on the divorce of the deceased person and the stepchild’s parent.
(3)To remove any doubt, it is declared that the relationship of stepchild and stepparent does not stop merely because -
(a)the stepchild’s parent died before the deceased person, if the deceased person’s marriage to the parent subsisted when the parent died; or
(b)the deceased person remarried after the death of the stepchild’s parent, if the deceased person’s marriage to the parent subsisted when the parent died.

The Authorities

The first of the authorities is the decision of the Victorian Court of Appeal in Popple. The three children of the former wife of the deceased made claim for family provision. The issue was whether they were children of the deceased and that turned on whether ‘children’ included ‘stepchildren’. The primary judge had held that the word ‘children’ in s 91 of the Act then in force included stepchildren. There was then, as now, no definition of children and, obviously, stepchildren were not included expressly. The Court of Appeal disagreed with the primary judge. Winneke P, Brooking and Hayne JJA regarded marriage as being integral to the existence of a stepchild relationship[93] and questioned whether the relationship of stepparent to stepchild survives the dissolution of the marriage (including dissolution by death).[94]
[93]Popple 654-5 (Brooking JA), 659 (Winneke P), 662 (Hayne JA).
[94]Popple at 653 (Brooking JA).

Brooking JA noted that the history of Victorian legislation in dealing with family provision strongly suggest that the words ‘widow’, ‘widower’ and ‘children’ used in the then s 91 of the then Act are not used in any loose sense. He said:

Had it been desired by the legislature to include stepchildren as eligible applicants, that category would have been expressly mentioned in s.91. History shows that when Parliament wishes to increase the categories of eligible claimant, or to enlarge an existing category, or to create a limited category, it does so by appropriate and express legislation.
Until 1962 it was clear that an ex-nuptial child was not a competent applicant under Part IV. The notion that, while an ex- nuptial child was not a ‘child’ for the purposes of Part IV, a child having no blood relationship with the deceased was a competent applicant, I find a strange one.[95]

[95]Popple at 656.

The defendant in the case before me contended that if the wider meaning of ‘stepchild’ is intended by the legislature, in any event, the stepparent-stepchild relationship is extinguished upon the death of the plaintiff’s mother.

In Popple, the claimants’ parent had died some 13 years before the deceased died. Brooking JA said:

The question has from time to time arisen whether the relationship of stepparent and stepchild survives the dissolution of the marriage between the natural parent and the stepparent; see, for example, R. v Cook; Ex parte C. (1985) 156 C.L.R. 249 at 263 per Deane J.; Basterfield v Gay (1994) 3 Tas. R. 293 and contrast Re Estate of Bordeaux 225 P. 2d 433 (1950). In the present case the marriage was dissolved by the death of the natural mother in 1982. The respondents contend that, notwithstanding that the marriage giving rise to the relationship came to an end long before the death of the testator, they are ‘children’ within the meaning of s. 91 simply by virtue of the fact that they are the children by a former marriage of the woman who married the testator. I am prepared to assume in their favour that the dissolution in 1982 of their mother's marriage to the testator puts them in no worse position than if their mother had not predeceased the testator, and in speaking of stepchildren hereafter, I shall ignore the distinction between cases where the testator's marriage still subsisted at his death and cases where it did not.[96]

[96]Ibid 654-5.

It is clear that Brooking JA did not decide whether the natural parent dying before the testator ended the stepparent and stepchild relationship.

It is also clear from the decision in Popple that the Court made no binding decision as to the meaning of ‘stepchild’ as it appears in the current legislation, contrary to the submission of the defendant. That is for two reasons, both in my view obvious. First, the decision is concerned only with the question of whether child in the then Part IV legislation included a stepchild, and not what might have been meant by stepchild had it been included in the legislation. Second, because the text of the legislation under consideration is utterly different from the current legislation in its treatment of the eligibility requirements. In other respects, however, the Court in Popple did opine on the ordinary and natural meaning of stepchild, but that is not binding on me in the context of the interpretation of the current laws.

In Re Burt,[97] the Full Court of the Supreme Court of Queensland held that the relationship of affinity between stepparent and stepchild, which comes into being with the marriage of the child’s natural parent[98] with the stepparent, depends for its continued existence upon the continuity of that marriage and that it ceases with the termination of that marriage whether by death or divorce.[99] In so deciding, the Court overruled two earlier decisions to the contrary. McPherson J referred to the definition section, which then defined stepchild as ‘in relation to any person, a child by a former marriage of that person’s husband or wife’ and not, as he pointed out, by reference to a child by a former marriage of that person’s former husband or former wife.[100]
[97][1988] 1 Qd R 23 (Andrews CJ, McPherson and Thomas JJ).
[98]The term ‘natural’ is used to refer to the biological parents and children because that is the language of the Act.
[99]Ibid [24] (Andrews CJ).
[100]Ibid [25] (McPherson J).

McPherson J said that, consistent with other provisions in the Act, the definition was intended to include only those children whose natural parent was still married to the deceased at the time of the deceased’s death. However, the foundation of McPherson J's judgment rested on a principle that emerged after an examination of American authority viz, Brotherhood of Locomotive Firemen and Enginemen v Hogan[101] and two other cases: Re Cook; Ex parte C[102] and Mander v O’Toole.[103]
[101](1934) 5 Fed Supp 598 (1934), at 600 (‘Hogan’s case’).
[102][1985] 59 ALJR 669 at 674; [1985] HCA 47; Reported also as Re Cook and Maxwell; Ex parte C. (1985) 156 CLR 249.
[103][1948] NZLR 909.

McPherson J referred to Hogan’s case as follows:[104]

In Hogan’s case, which was recently referred to by Dean J (sic) in Re Cook (1985) 59 ALJR 669, 674, Nordbye J undertook an extensive survey of decisions on the meaning of the word ‘stepchild’ in various American insurance policies and in statutes in which relationship by ‘affinity’ is a criterion. His Honour appears to have accepted, as correctly reflecting the effect of the majority of those decisions, the proposition then stated in 2 Corpus Juris 379 that ‘death of the spouse terminates the relationship by affinity … ‘. The basis of the underlying reasoning is that a step-relationship is one created by marriage, which therefore comes to an end when the marriage that brought it into existence is terminated by the death or a fortiori by divorce. A possible exception is said to exist where there are also surviving children of the remarriage that created the relationship. The underlying rationale of that exception is the existence of consanguinity between the children of the two marriages, who of course are relations by the half-blood.

[104]Re Burt [1988] 1 Qd R 23 at 26-7.

His Honour expressed the principle:[105]

To my mind, however, both the New Zealand decision and the United States authorities considered in Hogan’s case show that there is an ordinary or natural meaning of the word 'stepchild', and that the relationship it connotes is ordinarily regarded as coming to an end upon termination of the marriage that gave rise to it. The circumstance that the same result has been reached in two English-speaking communities separated geographically but not in origin or outlook is a factor that influences me to accept that it was in that sense that the Queensland Parliament probably intended to use the word in 1943 and again in 1968.
The result is, in my opinion, that the definition of stepchild in s 89 of the Act ought prima facie to receive a meaning consistent with its natural or ordinary meaning as connoting the child by a former marriage of the husband or wife of the testator or testatrix at the date of her death.

[105][1988] 1 Qd R 23 at 27-28; cited in Basterfield v Gay [1994] TASSC 120, [7] (‘Basterfield’).

Andrews CJ expressed broad agreement with the reasons of McPherson and Thomas JJ. Thomas J’s reasons were to the same effect as those of McPherson J.

Curiously, neither McPherson J nor Thomas J considered at length the statement of the common law position made by Deane J in Re Cook, although both refer to it and to the cases cited in it. Thomas J does, however, recognise doubt about an aspect of the law as he understood it when he said:

The status of stepchild, as ordinarily understood, does not apply to a case in which the natural parent has been divorced from the step-parent, and probably does not survive the death of the natural parent. … As it is not strictly necessary for the determination of the present case, I prefer not to express a final view as to whether, in the normal use of such words in Queensland, the status can survive the death of the natural parent. It is clear that it does not refer to all the children of all former marriages of all spouses, a result which would seem to be as chaotic as it was unintended. [emphasis added]

What this statement highlights is made clearer by close attention to the summary of the common law undertaken by Deane J in Re Cook, to which I will return.

The decision in Re Burt has been followed in several subsequent Queensland cases, including Re Marstella,[106] Re Taylor,[107] Re Danes,[108] Re Monckton[109] and Re John.[110]
[106][1988] FC 121; [1989] 1 Qd R 638 (Macrossan, McPherson and Shepherdson JJ).
[107][1988] QSC 298; [1989] 1 Qd R 205 (Thomas J).
[108][1989] QSC 026; [1989] 2 Qd R 236 (Williams J)
[109][1995] QCA 321; [1996] 2 Qd R 174 (Pincus JA, Davies JA and Ambrose J);
[110][1999] QCA 444; [2000] 2 Qd R 322 (McMurdo P, Davies and Thomas JJA).

The decision in Re Monckton was the subject of an application for special leave to appeal to the High Court, under the name Zeith v Public Trustee of Queensland. Special leave was refused. Toohey J observed on behalf of the Court that:

[t]his application concerns the meaning of stepchild in the Succession Act (Queensland) 1981. The decision of the Court of Appeal that on the death of the natural parent the relationship no longer exists accords with recent decisions of that Court and, furthermore, as a matter of construction it is a conclusion which is reasonably open. In those circumstances, the application for special leave to appeal is refused.[111]

[111]Zeith & Ors v Public Trustee of Queensland No B25 of 1995, 15 March 1996; [1996] HCATrans 86; Toohey J, McHugh J, Kirby J; quoted by the Queensland Court of Appeal in Panochini v Jude [2000] 2 Qd R 322, [8].

The decision in Re Burt was also followed in Basterfield v Gay[112] where the plaintiff claimed to be a stepchild of a deceased woman by reason of her father having married the woman. Her father predeceased the woman by eight years, and the question was whether the plaintiff was a stepchild of that woman at the date of her death, that is, whether the relationship of stepparent and stepchild can continue after the death of a natural parent and their new spouse.
[112][1994] TASSC 120 (Underwood J).

The Tasmanian Testator’s Family Maintenance Act 1912 (Tas) in s 2(1) defined ‘child’ to include a stepchild; and ‘stepchild’ as ‘in relation to a female deceased person, a child of that person’s husband by a former marriage’. In Basterfield, Underwood J analysed and followed Re Burt and in so doing, considered the authorities referred to in Re Burt at some length, and other authorities including the views of Deane J in the High Court in Re Cook.[113] He considered Hogan’s case at some length, noting that the decisions considered in it included two that are said to be authority for the proposition that the relationship of stepchild and stepparent continues after the death of the parent, but not after the divorce of the parent from the stepparent. In this regard, Underwood J quoted from the judgment of Nordbye J in Hogan’s case:

It may be admitted, however, that McGaughey and Simcoke Cases hold, in light of the circumstances therein disclosed, that the relationship by affinity was not extinguished by dissolution by death of the marriage which gave rise to the kinship. But if these cases are predicated upon authority of Spear v Robinson, supra, then clearly they are based on a decision that expresses the minority view.[114]

[113]Re Cook at 262-263.

[114]Hogan’s Case at 604.

Underwood J went on to say that in Hogan’s case the issue arose out of dissolution of marriage by divorce and it was held that in that circumstance that the relationship of affinity ended with the dissolution. Nordbye J expressed the view, obiter, that there appeared to be no substantial reason for distinguishing between the dissolution of a marriage by death and dissolution by divorce in a case where the marriage was without issue. Nordbye J said:[115]

The relationship of stepchild and step-parent is predicated on marriage, as are all other relationships of affinity. If the relationship of sisters, brothers, or cousins by affinity is abolished by dissolution of the marital relationship, the same principle must necessarily apply to the affinity between step-parent and stepchild. The entire structure of relationship by affinity is based on the subsisting marriage, not a dissolved one. Marriage in the eyes of the common law rendered the husband and wife as one. It was thought necessary and desirable therefore, to establish an affinity between the blood relatives of the respective spouses and the parties to the union. But where the union is dissolved, and there are no children of the marriage, society is not particularly served or benefitted by the continuance of the fiction when the cause has ceased.

[115]Hogan’s case at 605.

Underwood then referred to what Deane J said in Re Cook and quoted only a small extract:

… It has been held that the relationship will only persist while the marriage by reason of which it arises, remains undissolved.[116]

[116](1985) 156 CLR 249, 262.

Zeeman J in the Supreme Court of Tasmania in Re Connors, Connors v Tasmanian Trustees Ltd[117] also followed the Re Burt line of authority.
[117][1996] TASSC 126.

In Re Cook, a provision of the Family Law Act 1975 (Cth) deeming an ex-nuptial child of the husband or the wife to be a child of the marriage if ordinarily a member of the household of the husband and wife at the relevant time, was held to be invalid because it was not within the power to make laws with respect to marriage. On the facts, the wife was unmarried at the time of the child’s birth but married after the birth. Gibbs CJ and Mason, Wilson, Brennan and Dawson JJ, all of whom considered the provision wholly invalid, evidently did not think this relevant. Deane J, who dissented, considered that the provision was valid at least where there had been such a marriage, and so discussed the part played by marriage in a step-relationship.[118] Deane J said that:[119]

The relationship between step-parent and stepchild is one of affinity as distinct from consanguinity. The basis of the relationship is the marriage of the step-parent with the natural parent. With origins in Judaic and Christian teaching (cf Leviticus 18.8 and Genesis 2.24), it reflects the traditional common law view that for some purposes, marriage ‘rendered the husband and wife as one’: cf Brotherhood of Locomotive Fireman and Enginemen v Hogan[120] and see, generally, Gottliffe v Edelston.[121] Its significance has been recognised in a multitude of legislative provisions. [He then gives examples of the provisions.]
The nature of the relationship between step-parent and stepchild has been considered in numerous cases in common law jurisdictions. The relationship has been correctly described as a ‘quasi-parental’ one: see, eg, R v Frith.[122] It arises regardless of whether the child was an ex-nuptial child or was the child of a previous marriage: see Lineham v Lineham; R v Frith. The direct connexion between the relationship of step-parent and stepchild and the marriage from which it arises has often been stressed. Thus, it has been recognized that the relationship will only arise if the marriage of parent and putative step-parent was a valid one (see Wilkinson v Joughin[123]) and it has been held that the relationship will only persist while the marriage, by reason of which it arises, remains undissolved (Mander v O’Toole[124]), at least if there are no children born of the marriage: cf 2A Corpus Juris Secondum, p 514). If the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between step-parent and step-child will continue: see, eg, McGaughey v Grand Lodge AOUW of State of Minnesota[125]; Brotherhood of Locomotive Firemen and Enginemen v Hogan.[126] [references omitted] [emphasis added]

[118]See the Summary in R v Miller [2001] NSWCCA 209, [30] (Giles JA). In that case the Court of Criminal Appeal in NSW concluded, in the context of a criminal charge of unlawful carnal knowledge of a girl between 16 and 17, that marriage between the step-parent and the parent of the child is the basis of the step-relationship, that the step-relationship comes to an end on the termination of the marriage and the ordinary meanings of ‘step-father’ and ‘step-daughter’ should not be expanded by treating a de facto relationship between the offender and the parent of the child as sufficient for a step-relationship: per Giles JA at [42], [53] and [57].

[119](1985) 156 CLR 249, 262-263.

[120](1934) 5 Fed Supp 598, 605.

[121][1930] 2 KB 378, 383-387.

[122][1914] VLR, 660.

[123](1866) LR 2 Eq Cas 319, 322.

[124][1948] NZLR, 912-913.

[125](1921) 180 NW 1001.

[126](1934) 5 Fed Supp, 603-604.

The final sentence in the above quotation from the judgment of Deane J in Re Cook puts in definite terms the proposition that if the marriage remains undissolved at the time of the death of the natural parent, the relationship of affinity between stepparent and stepchild will continue. This is in contrast to the view of Nordbye J in Hogan’s case and the view of Andrews CJ and McPherson J in Re Burt and the views of the judges who have followed the decision in Re Burt.

The decision of the Supreme Court of Washington, en banc, in In Re Bordeaux’ Estate,[127] a decision referred to by Brooking JA in Popple,[128] resolves this contrast, at least so far as the conflict in American decisions is concerned. The In Re Bordeaux’ Estate decision traces the history of the principle, and its use in tax and insurance contexts, and its basis in the common law of England and America. In particular, it traces the basis of the principle that the relationship of stepparent and stepchild ceases on the dissolution (including death) of the marriage of the parent to the stepparent, and concludes that so far as its application to stepchildren under the inheritance tax legislation in issue in the case, it should not be applied to limit the meaning of stepchild as used in the statute. Robinson J, who delivered the opinion of the Court, considered all the decisions, including those disparaged by Nordbye J in Hogan’s case,[129] and made the following remarks:[130]

It is not an abuse of judicial notice to take into consideration the common meaning of the word ‘stepchild’ and to observe that, in point of actual fact, probably not one legislator, of the many who were involved in the passage of these various acts, understood the word to apply only in connection with those children whose natural parent survived their stepparent, or with those children whose natural parent left issue to continue the tie of affinity between them and the surviving stepparent.
The only justification for such an esoteric interpretation is the legal meaning of ‘stepchild’ requires it as a result of the supposed common-law rule that the tie of affinity is broken upon the death, without issue, of the husband or wife whose marriage gave rise to it. But isolated statements in the legal encyclopaedias to the contrary notwithstanding, there is no such absolute principle, and there never has been, either in the English common law, which continued the tie for the purposes of forbidding marriage between a man and his affinity relatives, or in the American common law, which has continued it for purposes of holding beneficiaries under insurance policies and workmen’s compensation laws competent to take as relatives.

[127]225 P. 2D 433 (1950).

[128]See Popple at 654.

[129]See above at paragraph 89.

[130]37 Wash. 2d 561 (1950), 591.

Robinson J then concluded:[131]

We are in agreement with the trial court that the principle that the death of a spouse, without issue, terminates the relationship by affinity, should not be applied to limit the meaning of the word ‘stepchild’, as used in this statute …

[131]Ibid 593.

Although, with the exception of the views of Deane J in Re Cook, the Australian decisions support the conclusion that the relationship of stepparent and stepchild will only persist while the marriage, by reason of which it arises, remains undissolved, so that it ceases upon the dissolution of the marriage before the death of the deceased, including by reason of the death of the natural parent before the death of the deceased, I consider that the better view is that advanced by Deane J and confirmed by the analysis in In Re Bordeaux’ Estate. As the extract from the reasons of Deane J in Re Cook testifies, if the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between stepparent and stepchild will continue.

Thus, in summary, it is my view that the inclusion of a domestic partner at the time of the deceased’s death as an eligible person, with equal status to a spouse, is an indication that the legislature may have intended that stepchildren of domestic partnerships should be encompassed in the meaning of stepchild. The doubt or ambiguity as to the legislative intention is resolved by the Explanatory Memorandum. That Explanatory Memorandum is an aid to the interpretation of the term in the Act because it indicates a legislative intent to embrace the wider meaning of stepchild as including the child of a parent who was in a domestic partnership with the deceased.

By analogy with the common law position of a stepchild of a marriage, the relationship of stepparent and stepchild of a domestic partnership for the purposes of Part IV ends if, before the death of the deceased, the domestic partnership ends otherwise than by the death of the parent. That is, if the domestic partnership ends by complete separation, or what might loosely be called dissolution.

But if the domestic partnership remains undissolved at the time of death of the natural parent, again by analogy with the position at common law, the relationship of affinity between stepparent and stepchild continues.

By way of contrast, the legislature contemplates that for a domestic partner (including the natural parent of a stepchild of the deceased) to be eligible, he or she must be living at the date of the deceased’s death. Does the fact that the legislature expressly limited the eligibility of the domestic partner (and of course a spouse) in this way, have any effect on the eligibility of the child of a domestic partner who has pre-deceased the deceased? That is, must the stepchild be the natural child of a domestic partner of the deceased still in that relationship with the deceased at the time of the deceased’s death?

I do not consider that this is necessary. The relevant paragraph of the definition of eligible person is paragraph (f) of s 90 of the Act. That paragraph has no temporal element. By rolling together the status of children and stepchildren in that paragraph, where they are separated in paragraphs (b) and (c) (because of the express inclusion of a child adopted by the deceased in paragraph (b)), it may be said that the legislature has placed stepchildren on an equal footing with natural children, to the extent that is possible. Thus, once a child of the deceased always a child of the deceased; once a stepchild of the deceased always a stepchild of the deceased (providing the relationship of the deceased with the natural parent was not earlier dissolved otherwise than by death).

Once it is concluded, as it must be in my opinion, that the term stepchild includes the child of a parent who was in a domestic partnership with the deceased, the applicability of the common law rules to which I have referred to the determination of when that stepchild of a marriage ceases to be a stepchild is compelling. My conclusion that the relationship of stepchild and stepparent ends when the marriage to the parent of the stepchild dissolves (otherwise than by death) is, perhaps not unsurprisingly, in accord with the Queensland definition to which I have earlier referred.

Similarly, the application of the common law rules has the result that if the parent of the stepchild dies before the deceased, as the plaintiff’s mother in this case did some 15 years before the deceased’s death, the plaintiff will remain a stepchild of the deceased because the domestic partnership remained undissolved at the time of death of the natural parent. This conclusion also equates to the position in Queensland applicable to the stepchild of a married stepparent.

Status of Children Act

It remains to deal with the plaintiff’s submission that the defendant’s definition of stepchild is impermissibly discriminatory and points to the SCA whereby all children are held to be equal irrespective of whether the father and mother are or have been married to each other and all other relationships are determined accordingly.[132]
[132]Plaintiff’s Submissions, [22].

The consideration of the cognate legislation in Tasmania by Underwood J in Basterfield v Gay[133] shows that before the enactment of the SCA a reference to a child or children was taken to refer to a legitimate child or children, in the absence of some repugnancy or inconsistency with other provisions in the Act. Since the SCA, a ‘child’ or ‘children’ has to be construed without reference to whether the parents were ever married, and the SCA requires that the same construction be applied to all other relationships, including stepchildren.
[133](1994) 3 Tas R 293, 300-302.

Although it is not strictly necessary to my conclusion that the reference in s 90 to a stepchild includes the child of a parent in a domestic partnership with the putative stepparent, it seems to me to be open to conclude that the SCA confirms this construction. By the operation of the SCA, the child of a parent in a domestic partnership with another, makes the other a stepparent.

Conclusion

Although the relationship of stepparent and stepchild as defined in the dictionaries and in the authorities is relatively precise and is determined by readily understood criteria, the clear intent of the legislature in prescribing the persons eligible to apply for family provision includes the child of a parent who was in a domestic partnership with the deceased.

The relationship of stepparent and stepchild continues unless, before the death of the deceased, the relationship is ended in the sense of dissolved otherwise than by the death of the natural parent. If the natural parent died before the deceased and at the date of that death remained in the domestic partnership with the deceased, then the stepchild continues to be the stepchild of the deceased for the purposes of the eligibility provisions of Part IV of the Act.

Accordingly, on the present facts and assumptions, the plaintiff in this proceeding is an eligible person.

Orders will be made that the defendant’s summons is dismissed. I will hear the parties further as to the question of costs.

[2016] VSC 563

20 September 2016