In the Matter of Athanassios Sinodinos Deceased and in the Matter of the Inheritance (Family Provision) Act 1972 as Amended: Nathan David Flynn-Sinodinos by His Next Friend David Allan Flynn (Plaintiff), Stacey..
[1994] SASC 4709
•11 August 1994
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J
CWDS
Testator's family maintenance - jurisdiction - persons in whose favour order may be made - Claimants seeking provision out of testator's estate pursuant to Inheritance (Family Provision) Act - claiming to be eligible to make application under the Inheritance Act as children of a child of the testator - whether, should the claimants' mother prove not to be a biological child of the testator, still able to claim - testator acknowledged in notification of birth form being father - birth certificate recording testator as father of claimants' mother - Inheritance Act defining "child" as a person recognized as such in Family Relationships Act - s7 of that Act, being applicable in the circumstances, stating that a person shall be recognized as father of a child born outside of marriage if, inter alia, he has acknowledged himself in proceedings for the registration of the birth of the child that he is the father of the child - acknowledgement in notification of birth form amounting to acknowledgement in proceedings for registration - circumstances set out in s7Family Relationships Act mandatory code for recognition of a child's father - claimants entitled to claim. Inheritance (Family Provision) Act, 1972 s6(h); Family Relationships Act, 1975 s7; Birth, Deaths and Marriages Registration Act, 1966 s19 and Births and Deaths Registration Act, 1936-1962 sl9.
HRNG ADELAIDE, 5 July 1994 #DATE 11:8:1994
Counsel for plaintiff: Mr M Fricker with
Mrs V M West
Solicitors for plaintiff: Scammell and Co
Counsel for claimant Stacey: Mr R G Frost
Solicitors for claimant Stacey: Reilly Basheer Downs
and Humphries
Claimant Helen Sinodinos Launer: In person
Counsel for defendants Con Sinodinos
and Harry Zacharoyannis: Mr D M Haines
Solicitors for defendants Con Sinodinos
and Harry Zacharoyannis: Zacharoyannis,
Luppino and Eckermann
Counsel for defendants Mary Morgan,
Cammel Shiels, Zoja Burne
and John Spyridis Mr J Roder
Solicitors for defendants Mary Morgan,
Cammel Shiels, Zoja Burne
and John Spyridis: Bruce Roberts
and Brebner
ORDER
Determinations made.
JUDGE1 OLSSON J These are preliminary issues ordered to be heard and determined in the context of proceedings prosecuted pursuant to the provisions of the Inheritance (Family Provision) Act, 1972 ("the Inheritance Act").
2. In those proceedings two infant children of Yasmin Jane Angelique Sinodinos ("Yasmin"), who is said to be a child of Athanassios Sinodinos deceased ("the testator"), seek provision, out of the estate of the testator, for their maintenance and advancement in life.
3. During the course of the proceedings a question arose as to the locus standi of the two infants to make application pursuant to the Inheritance Act, it being asserted that Yasmin, their mother, was not the biological child of the testator. This was essentially the product of a scientific opinion that the blood group of Yasmin was such that the testator could not have been her natural father.
4. I am not presently required, finally, to rule upon that question, but, by consent, it was ordered that, in relation to each infant claimant, there be determined, as a preliminary issue, the question of whether, in the event that Yasmin proved not to be the biological daughter of the testator, that infant is:-
- an eligible child for the purposes of section 6(h) of
the Inheritance Act; or
- entitled under any other provision of that Act to claim
the benefit of it.
5. It is convenient, first, to record the relevant factual background, as established for the purposes of the preliminary issues. I do so on the implicit assumption - adopted by counsel as the basis for argument - that the testator was not the biological father of Yasmin. Whether or not that assumption can be made good remains an open question.
6. Yasmin's mother, the claimant Helen Sinodinos Launer ("Mrs Launer") was married to the testator on 16 January 1957. They cohabited from that date until late May 1965. Having separated for a time they again cohabited from late October 1965 until February 1968.
7. On 5 May 1965 Mrs Launer had instituted proceedings for dissolution of marriage on the grounds of the testator's habitual drunkenness and cruelty. A decree nisi was obtained by her on 29 July 1965. This became absolute on 30 October 1965.
8. Mrs Launer deposed that she and the testator had sexual relations up to the time of the separation in May 1965 and that Yasmin was born on 4 February 1966, after a normal pregnancy of about 40 weeks' duration. The testator was present at the birth and, as the father of Yasmin, signed the relevant documentation to lead to registration of that birth. The certificate of registration records that the testator was the informant, in his capacity as father of Yasmin.
9. Yasmin was baptised on 27 February 1966 - the testator, once again, being recorded as her father. In Wills prepared for or executed by the testator in 1981, 1985, 1986, 1987 and 1989 respectively the testator expressly referred to Yasmin as his daughter.
10. The testator died on 16 December 1990. Yasmin survived him, but herself died, as a consequence of an act of murder, on, or just prior to, 16 December 1991.
11. During the period of resumed cohabitation, commencing at about the time of the decree absolute, the testator is said to have purchased all necessities required for Yasmin.
12. Mrs Launer again separated from the testator in early 1968 and, with Yasmin, lived in his brother's household for a short time. She then met and married one Clarence Launer, Yasmin being a member of the new household. Mr Launer was killed in a motor vehicle accident on 30 July 1970.
13. Although the testator did not pay monetary maintenance for Yasmin after the second separation, he regularly visited and had access to her. At times he purchased clothing and toys for her. At all material times he held her out to the Greek community as his daughter.
14. Mrs Launer and Yasmin moved to Western Australia in 1974. Yasmin returned to stay with the testator for the Christmas school holidays. It is deposed by Mrs Launer that, whilst Yasmin was with the testator for the 1978 Christmas school holidays, he asked that she remain with him, but Mrs Launer would not agree.
15. Following Christmas 1980 Yasmin returned to live with the testator for a week or so. She then moved to Coober Pedy and worked in a shop. Thereafter she lived independently. She continued to maintain a regular association with the testator.
16. Against that background I return to the legal issues debated before me.
17. The basic entitlement to make a claim pursuant to the Inheritance Act is conferred by section 6 of that statute. It stipulates that:-
"6. The following persons are, in respect of the estate of
a deceased person, entitled to claim the benefit of this
Act:-
(a) the spouse of the deceased person;
(b) a person who has been divorced from the deceased
person;
(c) a child of the deceased person;
...
(g) a child of a spouse of the deceased person being a
child who was maintained wholly or partly or who was
legally entitled to be maintained wholly or partly by the
deceased person immediately before his death;
(h) a child of the child of the deceased person;
(i) a parent of the deceased person who satisfies the
court that he cared for, or contributed to the maintenance
of, the deceased person during his lifetime;
(j) a brother or sister of the deceased person who
satisfies the court that he cared for, or contributed to
the maintenance of, the deceased person during his
lifetime."
18. The infants seek to prosecute their claims pursuant to subparagraph (h) of the section.
19. Section 4 contains a definition of the word "child", which is expressed in these terms:-
"'child' in relation to a deceased person includes a
person who is recognized as a child of that person by
virtue of the Family Relationships Act, 1975, and 'parent'
has a correlative meaning".
20. That definition is not expressed to be exclusive. It was strongly pressed on me that, having regard to the obvious social objects of the statute, a liberal interpretation should be placed upon the word "child", so as to encompass (inter alia) persons acknowledged and/or held out by a testator, in his lifetime, as his natural child. Thus it was contended that, whatever was the true biological status of Yasmin, she was, on the evidence, a "child" of the testator - so that her children were, in turn, entitled to claim the benefit of the Inheritance Act.
21. Such a contention raises a substantial issue of general importance and potential widespread impact. If this case fell to be disposed of solely on such a basis then I would consider the issue to be one appropriate for the consideration of the Full Court. However, I do not find it necessary to determine the preliminary issues on such a footing. It seems to me that, on the facts before me, they can and ought to be decided on a somewhat narrower basis. I merely content myself with observing that it appears at least arguable that the definition to which I have referred may well, by its terms, imply that, prima facie, the expression "child", in its primary sense, is intended to refer to a biological child of a testator.
22. Be that as it may, the proper resolution of the issues in this case seems to me to flow from an application of section 7 of the Family RelationshipsAct, 1975 ("the Relationships Act"). Such section provides that:-
"7. A person shall be recognized as the father of a child
born outside marriage only if -
(a) he is recognized as father of the child by reason of
legitimation of the child, or under the law relating to
the adoption of children;
(b) he has acknowledged in proceedings for registration of
the birth of the child (either in this State or in some
other place) that he is the father of the child;
(c) he has been, during his lifetime, adjudged by a court
of competent jurisdiction (either of this State, or of
some other place) to be the father of the child;
or
(d) he has been adjudged under this Act to be the father
of the child."
23. Section 7 is to be construed in light of the following definition contained in section 5 of the Relationships Act:-
"5. In this Act, unless the contrary intention appears -
'child born outside of marriage' includes a child born to
a married woman of which a man other than her lawful
spouse is the father:"
24. On the assumption underlying the preliminary issue I am required to treat Yasmin as falling within that definition.
25. It follows that, if it may fairly be said that the testator "acknowledged in proceedings for registration of" her birth that he was the father of Yasmin, then he must be recognised as her father for the purposes of the Relationships Act; and thus also for the purposes of the Inheritance Act. It seems to me that, having regard both to the mandatory introductory wording of the section and the content of subclauses (c) and (d) in particular, the clear intention of the statute is to create an exclusive code as to bases of "recognition" for the purposes of the Relationships Act.
26. Mr Haines, of counsel for the executors, argued that subclause (b) of section 7 of the Relationships Act must be interpreted in accordance with the provisions of section 19 of the Births, Deaths and Marriages Registration Act, 1966 ("the Registration Act"). He contended that the "proceedings for registration of the birth" adverted to in section 7 of the Relationships Act were those contemplated by subsection (5) of section 19 of the Registration Act, i.e. that it is only in the case of the invoking of the procedure of section 19 that section 7(b) has any application.
27. Section 19 of the Registration Act is couched in these terms:-
"Registration of illegitimate child
19. (1) In the case of the birth of a child born out of
lawful marriage, the mother of the child shall furnish or
cause to be furnished the particulars required by section
15 of this Act.
(2) On registering the birth of a child born out of lawful
marriage the principal registrar shall, except in the
circumstances mentioned in subsection (4), of this section
enter the words 'paternity not acknowledged' in the column
of the certificate for the name of the father.
(3) Where a child is born out of lawful marriage -
(a) the mother need not furnish particulars relating to
the paternity of the child;
but
(b) where, in the form completed by the mother, a person
is named as father of the child, and the appropriate
certificate contained in the form is not completed by the
father, the principal registrar shall serve personally or
by post upon the person alleged to be the father of the
child, a copy of the form as completed by the mother
accompanied by a notice in writing addressed to the
alleged father inviting him to acknowledge that he is the
father of the child.
(4) Subject to this section, the name of a person shall
not be entered in a register as father of the child unless -
(a) he has, in the form furnished by the mother in
pursuance of this section, acknowledged that he is the
father of the child;
or
(b) he has, in response to an invitation addressed to him
under subsection (3) of this section, acknowledged within
thirty days after the date of the invitation that he is
the father of the child.
(5) If in proceedings for registration of the birth of a
child born out of lawful marriage the paternity of the
child is not acknowledged, but the principal registrar is
satisfied that the paternity of the child has been
established by an affiliation order or otherwise by a
decree of a court of competent jurisdiction, the principal
registrar shall cause to be entered in the register of
births the name of the father of the child. The principal
registrar shall give notice of the entry to the district
registrar having the custody of the register in which the
birth is entered who shall endorse in the relative entry a
copy of the entry made by the principal registrar.
(6) The principal registrar, a district registrar or
assistant district registrar shall, as occasion requires,
bring the provisions of this section and of Part VI of the
Marriage Act 1961, of the Commonwealth to the notice of
every informant of the birth of any child born out of
lawful marriage.
(7) the parent of a person legitimated under the Marriage
Act 1961 of the Commonwealth shall, within three months
after the date of the legitimation, furnish the principal
Registrar with a notice of the legitimation in a form
stipulated by the principal Registrar.
(8) The principal Registrar shall, upon receipt of a
notice under subsection (7) of this section -
(a) endorse on the register a note of the legitimation;
or
(b) re-register the birth of the legitimated person in the
same form as if he had been born within marriage."
28. However, that provision was not in force as at the time of birth of Yasmin and therefore section 19 would appear to be of little assistance for present purposes other than as an aid to statutory interpretation.
29. The form of notification of birth, as actually completed under the precursor of the Registration Act, was as under:-
"LIVE BIRTHS
(This form must not be used where the child was still born
(see note 5 on page 1). A special form is available for
that purpose.)
CHILD
1. Date of birth (see note 3 on page 2) 4th Feb 1966
(stamped 28 JUL 1966)
2. Place of birth Stirling West Hosp
(Exact address - include name of hospital)
3. Christian name(s) in BLOCK letters YASMIN JANE
ANGELIQUE
(Do not include surname)
4. Sex Female
FATHER OF CHILD
(Note that information regarding the father must not be
furnished in the case of a child not born in lawful
marriage unless the person who acknowledges himself to be
the father desires to sign this form jointly with the
mother.)
1. Christian name(s) Athanassios (Arthur) SINODINOS
2. Surname SINODINOS
3. Occupation Licensed Land Agent and Primary Producer
4. Date of birth of father 26/6/1925. Age last birthday
at birth of child 40
5. Place of birth of father (town and country) Patras
Greece
MOTHER OF CHILD
1. Christian name(s) Beatrice Thelma Helena
2. Married surname Sinodinos
3. Maiden surname Doe
4. If a widow, divorcee, or married more than once, state
surname of each former husband SINODINOS
5. Date of birth of mother 8/5/37 last birthday at birth
of child 28 yrs old
6. Place of birth of mother (town and country) Rose Pk
Adelaide
7. Usual residence of mother (exact address) Mylor Rd
Aldgate
MARRIAGE OF PARENTS
1. Date of marriage of parents 16th Jan 1957
2. Place of marriage Greek Ox Church - Thebarton
3. Previous children of PRESENT MARRIAGE only - no other
children to be included (see note 5 on page 2) -
(a) Full names and ages of such children as were ALIVE at
the date of birth of this child -
MALES FEMALES
Christian Names DOB Christian Names DOB
_______________ ____________
_______________ ____________
(b) Number of such children as were DECEASED at the date
of birth of this child (exclude stillborn and adopted
children) -
Males (No.)......... Females (No.)...........
THE CERTIFICATE ON THE BACK OF THIS FORM MUST BE SIGNED BY
THE INFORMANT
(back of form)
Signed by me this 27th day of March 1966
(signed A. Sinodinos and B.T.H. Sinodinos)
Signature of Parent
Relationship to child Father - Mother
Full address MYLOR Road Aldgate
(The informant must insert the full address to which any
necessary notice of registration or other communication
must be sent.)
DECLARATION TO BE MADE ON LATE REGISTRATION OF BIRTH
Births and Deaths Registration Act, 1936-1962
- Third Schedule
I, Beatrice Thelma Helena Sinodinos of Mylor Rd Aldgate do
solemnly and sincerely declare that a F (male or female)
child was born at Stirling West on the 4th day of Feb ,
1966 , and that the particulars now furnished for the
registration of the said birth are the true particulars of
the birth.
And I make this solemn declaration conscientiously
believing the same to be true and by virtue of the
provisions of the Oaths Act, 1936.
(signed) B.T.H. Sinodinos
Declared at Adelaide this 27th day of July , 1966
Before me -
Registrar of Births
Fee for late registration to be remitted with declaration,
vide paragraph 6, page 1.
THIS FORM, WHEN COMPLETED, MUST BE RETURNED TO THE OFFICE
OF THE PRINCIPAL REGISTRAR, BIRTHS, DEATHS AND MARRIAGES
BOX 1351H, G.P.O., ADELAIDE, S.A.
(stamped 27 JUL 1966)"
30. It will at once be noted that the form expressly stipulates that the "information regarding the father must not be furnished in the case of a child not born in lawful marriage unless the person who acknowledges himself to be the father desires to sign the form jointly with the mother". It is perfectly obvious that both the testator and the mother did jointly sign the form. They manifestly did so pursuant to the relevant provisions of section 19 of the Births and Deaths Registration Act 1936-1962, in the form in which it stood at the time of Yasmin's birth. This provision was then expressed as follows:-
"19. (1) In the case of the birth of a child born out of
lawful marriage, the mother of the child shall furnish or
cause to be furnished the particulars required by section
15.
(2) On registering the birth of a child born out of lawful
marriage the district registrar or assistant district
registrar shall, except in the circumstances mentioned in
subsection (4) or subsection (5), enter the words 'not
stated' in the column of the certificate for the name of
the father.
(3) The father of a child born out of lawful marriage
shall not be required to give information under this Act
concerning the birth of that child. No particulars
relating to the father of the child shall be included in
the information statement with respect to the birth of any
such child unless at the joint request of the mother and
of the person acknowledging himself to be the father and
the person so acknowledging himself shall, in any such
case, sign the information statement with the mother.
(4) The district registrar or assistant district registrar
shall not enter in the register the name of any person as
father of any such child unless at the joint request of
the mother and of the person acknowledging himself to be
the father; and the father shall in any such case sign
the certificate together with the mother or shall in the
information statement authorize some other person to sign
the certificate on his behalf.
(5) In any case where the father does not acknowledge
himself to be the father of the child and make a request
as provided by subsection (4), but the principal registrar
is satisfied that, at any time before the registration of
the birth, the paternity of the child has been established
by an affiliation order or otherwise by a decree of a
court of competent jurisdiction, the principal registrar
shall, if the birth has been registered by a district
registrar or an assistant district registrar, direct the
district registrar or assistant district registrar to
enter the name of the father in the register.
(6) If in the entry of the registration of the birth of
any child born out of lawful marriage the father of the
child is not stated, but the principal registrar is
satisfied that the paternity of the child has been
established by an affiliation order or otherwise by a
decree of a court of competent jurisdiction, the principal
registrar shall cause to be entered in the register of
births the name of the father of the child. The principal
registrar shall give notice of the entry to the district
registrar having possession of the register in which the
birth is entered, who shall indorse on the relative entry
a copy of the entry made by the principal registrar.
(7) The principal registrar, a district registrar or
assistant district registrar shall, as occasion requires,
bring the provisions of this section and of Part VI under
the notice of every informant of the birth of any child
born out of lawful marriage."
31. Section 7 of the Relationships Act is expressed in the most general terms and refers to an acknowledgment of paternity in any proceedings for registration of a child.
32. I am therefore inexorably driven to the conclusion that, on any view, this was a situation to which section 7 of the Relationships Act patently applied. In proceedings for registration of the birth of Yasmin, the testator patently acknowledged his status as her father. "Proceedings", within the meaning of that section are clearly not confined to legal proceedings, but extend to the processes to lead to registration of both envisaged by the Registration Act. (See, for example, section 19(5) of the Registration Act. Note also the reasoning in R v Westminister (City) London Borough Rent Officer, ex parte Rendall (1973) 3 All ER 119 at 121, Quazi v Quazi (1979) 3 All ER 424 at 429-30.)
33. In those circumstances it must be declared and determined that each of them Nathan David Flynn-Sinodinos and Stacey Ann Sinodinos is a person entitled, pursuant to section 6(h) of the Inheritance Act, to claim the benefit of that statute.
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