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

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: 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
Case: [1994] SASC 4709
Decision Date: 11 August 1994

CaseChat Overview and Summary

The case before the Supreme Court of South Australia involved two infant children of Yasmin Jane Angelique Sinodinos, who sought provision from the estate of their grandfather, Athanassios Sinodinos, the deceased, under the Inheritance (Family Provision) Act, 1972. The court had to determine whether the infants were eligible to claim under the Act if Yasmin, their mother, was not the biological daughter of the deceased. The issue arose from a scientific opinion that the deceased could not be Yasmin's natural father based on blood group incompatibility. The court examined the definition of "child" under the Family Relationships Act, 1975, and the acknowledgment of paternity by the deceased in the notification of birth form for Yasmin. The court concluded that the deceased's acknowledgment in the registration process qualified him as Yasmin's father under the Family Relationships Act, and thus, her children were entitled to claim under the Inheritance Act. The court's decision hinged on the interpretation of statutory provisions and the acknowledgment of paternity, leading to the determination that the infants were eligible to claim under the Act.

The final order of the court was that each of Nathan David Flynn-Sinodinos and Stacey Ann Sinodinos was a person entitled, pursuant to section 6(h) of the Inheritance Act, to claim the benefit of that statute.

Orders