Estate of Mackenzie and Estate of Mackenzie and Anor

The proceeding involved the Estate of Mackenzie and the Estate of Mackenzie and Anor, with the husband being the applicant and the wife being the respondent. The dispute concerned the interpretation of section 79(8) of the Family Law Act 1975 (Cth) in circumstances where both parties to a marriage had died. The husband and an intervenor argued that the section could be invoked if one or both parties had died, while the wife contended that the section only applied if a single party to the marriage had died.

The primary legal issue before the court was to determine the meaning of the phrase "a party to the marriage" within section 79(8) of the Family Law Act 1975 (Cth) as amended. Specifically, the court had to ascertain whether this phrasing encompassed the death of one party, or both parties, to the marriage. This interpretation was crucial for determining the applicability of section 79(8) to the present case.

Justice Le Poer Trench applied the principles of statutory interpretation, referencing section 15AB of the Acts Interpretation Act 1901 (Cth) and the High Court's decision in *Re Australian Federation of Construction Contractors; Ex parte Billing*. The court determined that the ordinary meaning of "a" in the phrase "a party to the marriage" signified "one" or "single". This interpretation was supported by dictionary definitions and reinforced by analogy to the High Court's reasoning in *Fisher v Fisher* regarding the word "either". The court found that the amendment from "either party" to "a party" did not alter the fundamental meaning that the section applied only upon the death of one party.

The application of the husband filed on 15 July 2003 was dismissed.