Re an application by State Trustees Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 01742

IN THE MATTER of an application by STATE TRUSTEES LIMITED (as the administrator of the estate of LESLIE NORMAN JOHN SHOLL deceased) pursuant to r 54.02 for directions in relation to the administration of the Estate

APPLICATION BY:

STATE TRUSTEES LIMITED (as the administrator of the estate of LESLIE NORMAN JOHN SHOLL deceased)

Plaintiff

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2023, with further written submissions on 18 and 25 August 2023 and 28 August 2024
DATE OF JUDGMENT:	2 September 2024
CASE MAY BE CITED AS:	Re an application by State Trustees Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 536

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ADMINISTRATION AND PROBATE — Intestacy — Whether relationship of father and child existed for purposes of succession - bigamous marriage — Status of Children Act 1974 (Vic) (SOCA), ss 2, 5 and 7 — ‘marriage’ includes ‘void marriage’ — Whether proof of dissolution or annulment of marriage — Whether presumption of parenthood — Whether presumption displaced — Standard of proof — G v H (1994) 181 CLR 387 applied — Held: parents recorded in Registry records as having been married, were married at the time the deceased was born – Presumption of paternity arises by operation of s 5 SOCA - Relationship of father and child recognised for purposes of succession pursuant to s 7(1)(a) of the SOCA.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah of counsel	State Trustees Victoria

TABLE OF CONTENTS

Introduction

Background

Relevant legislation and principles

Consideration

Conclusion

HIS HONOUR:

Introduction

Leslie Norman John Sholl (‘the deceased’) died on 6 November 2020, leaving an estate worth approximately $547,000 but without leaving a will, or spouse, or children, or any maternal relatives. On 10 August 2021, the plaintiff was granted Letters of Administration.
By originating motion filed on 28 April 2023,[1] the plaintiff applies to the Court for an answer to the question whether a relationship of father and child existed between the deceased and Leslie Norman Bull (‘Mr Bull’), which in the circumstances is critical to the administration of the estate.[2] If there was such a relationship, the estate will pass to Mr Bull’s relatives. If there was not, it will pass to the State of Victoria.
[1]The application is made pursuant to rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) for directions in relation to the administration of the estate.
[2]Rules (n 1) r 54.02(a)(i).
The plaintiff has conducted extensive inquiries into the deceased’s history including genealogical investigations. The evidence includes an affidavit sworn by Ms Ann Church (‘Ms Church’) on 24 April 2023, a genealogist in the employ of State Trustees Ltd, who has uncovered various public records and a newspaper article which provide limited but colourful details relevant to the issues to be resolved. The background set out below is drawn from this material.

Background

In about April 1946, Mr Bull, who was then 17 or 18 years old, married June R V Tickner (‘Ms Tickner’) in Portsmouth, England.[3] It is unclear what happened in the following four years, save that by 1950 Mr Bull was a seaman engaged as Assistant Steward on the SS Asturias, which transported emigrants from Britain to Australia. In October 1950, the SS Asturias was anchored in Sydney with Mr Bull, for a short while, on board.
[3]Affidavit of Ann Church, sworn 24 April 2023, exhibit “AC-1”, 18 (‘Affidavit of Ann Church’).
On 5 October 1950, Mr Bull married Ms Joan Mary Sholl (‘Ms Sholl’) in Sydney.[4] The Registry records describe ‘Leslie Norman Bull’ as ‘Assistant Steward’ with a usual place of residence of ‘SS Asturias’.
[4]Affidavit of Ann Church, Exhibit “AC-1”, 17.
On 7 October 1950, Mr Bull deserted the SS Asturias, presumably to pursue a life with Ms Sholl.
On 13 February 1952, 16 months after Mr Bull married Ms Sholl, the deceased was born. His birth certificate records his mother as ‘Joan Mary Sholl’, but does not name the father.[5] It is unclear what Ms Sholl knew of Mr Bull’s past, or why he was not named as the father on the birth certificate. The fact that she named the deceased ‘Leslie Norman,’ being Mr Bull’s first two names, suggests a connection. Whether or not Ms Sholl knew about Mr Bull’s past when the deceased was born, it is likely she knew about it by 2 March 1953 when a newspaper article appeared in the Newcastle Sun describing Mr Bull’s encounters with the law in the following terms:
[5]Accordingly the birth certificate is not prima facie evidence of parentage; Status of Children Act 1974 (Vic) s 8(1) (‘SOCA’).
BIGAMIST WAS DESERTER
SYDNEY – A young English seaman who was given a three year bond at the Quarter Sessions on Friday on a charge of bigamy pleaded guilty at Water Police Court today to deserting a ship.
He was Leslie Norman Bull (26) labourer of Essendon who deserted the Asturias in Sydney on October 7, 1950. He was sentenced to four weeks imprisonment.[6]
[6]Affidavit of Ann Church, Exhibit “AC-1”, 19.
The date of 2 March 1953 was a Monday, so I presume the reference to ‘Friday’ is a reference to 27 February 1953. It appears from this article, and from the lack of records of any divorce, that Mr Bull neglected to divorce Ms Tickner prior to marrying Ms Sholl in which case his marriage to Ms Sholl was bigamous, and therefore void.
When Ms Sholl appears on the Australian Electoral Roll in the Melbourne Ports electorate in 1954, she uses her maiden name. The genealogical evidence is that this was ‘as a result of her marriage being annulled’[7] but there does not appear to be any documentary evidence as to annulment.
[7]Affidavit of Ann Church, Exhibit “AC-1”, 22.
The deceased was unmarried and did not have any children. [8]
[8]Affidavit of Ann Church, [7]. See also death certificate dated 14 July 2021, 11.
The deceased’s mother, Ms Sholl, was born to Ruby Sholl. No father is recorded on Ms Sholl’s birth certificate, although the marriage records of Mr Bull and Ms Sholl record that Ruby Sholl’s father was John Kennedy. Ruby Sholl had one other child, Doreen Sholl who was born on 11 December 1921 and died on 1 April 1995. No records have been located indicating that Doreen had any children. Accordingly, for present purposes the deceased has no maternal relatives.
Mr Bull has a number of living relatives including nieces and nephews who reside in England, and depending on conclusions drawn as to the deceased’s parentage, are potential beneficiaries of the deceased’s estate.

Relevant legislation and principles

As the deceased died intestate and has left no partner, children, parents, siblings or grandparents, the only remaining possible beneficiaries of his residuary estate are aunts, uncles or cousins, through Mr Bull, pursuant to s 70ZK of the Administration and Probate Act 1958 (Vic) (‘Administration and Probate Act’). That section provides:
Distribution to aunts and uncles or to cousins by representation
(1)If an intestate leaves more than one aunt or uncle but no partner, no child or other issue, no parent, no sibling, no issue of a sibling and no grandparent, the residuary estate must be distributed equally between the aunts and uncles.
(2) If the intestate leaves one aunt or uncle but no partner, no child or other issue, no parent, no sibling, no issue of a sibling and no grandparent, the aunt or uncle is entitled to the whole residuary estate.
(3) If an aunt or uncle of an intestate predeceases the intestate leaving a child who survives the intestate, that child is entitled to the aunt or uncle’s share and, if there are 2 or more children, in equal shares.
If the deceased has no aunts, uncles or cousins, then the residuary estate will pass to the Crown by operation of s 70ZL of the Administration and Probate Act, which provides:
Crown to take estate if no person entitled
If no person is entitled to the estate of an intestate under this Part, the residuary estate—
(a) is taken to be property that has no owner; and
(b) passes to and belongs to the Crown.
The deceased’s father is not named in the birth certificate, and there is no direct evidence as to who his father was. The question therefore arises whether there is a basis upon which to find that Mr Bull was the deceased’s father, and his relatives therefore beneficiaries of his residuary estate on his intestacy.
There is a presumption at general law that a child born or conceived during a marriage is the child of the husband of the mother.[9] But that presumption does not arise where the marriage is not valid, and a bigamous marriage is void, so the presumption does not arise under general law in this case.
[9]In the Marriage of J and P (1985) 80 FLR 126, 130 (Treyvaud J).
The definition of ‘parent’ in the Administration and Probate Act does not assist in the present case. It provides:
"parent" of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident;[10]
[10]Administration and Probate Act 1958 (Vic) s 3 (definition of ‘parent’).
And the definition of ‘aunt or uncle’ is:
… a sibling of a deceased person’s parent.[11]
[11]Ibid s 3 (definition of ‘aunt or uncle’).
There is no evidence that Mr Bull ever had ‘day to day care and control’ of the deceased, or was ordinarily resident with him. However, the definition is inclusive and not exhaustive.
The Status of Children Act 1974 (Vic) (‘SOCA’) was enacted[12] to modernise the concept of parentage and remove the legal impediments associated with the status of illegitimacy. Its long title is ‘An Act to remove the Legal Disabilities of Children born out of Wedlock.’ It does not apply to instruments executed before the commencement of the SOCA[13] nor does it apply in relation to the distribution of estates where someone died intestate prior to the commencement of the SOCA.[14] But otherwise it is reasonably certain that the SOCA was intended to apply retrospectively in the sense that it applies to children born out of wedlock prior to the date the SOCA came into operation, but who died intestate after its commencement. I will proceed on that basis.[15] It has been amended several times in recent years to adapt to changing times. There are several provisions addressing the circumstances in which a person will be deemed or presumed to be a child’s parent.[16]
[12]Assented to on 26 November 1974 and in operation from 1 March 1975.
[13]SOCA (n 5) s 4(1).
[14]SOCA (n 5) s 4(3).
[15]See Minogue v Victoria (2018) 264 CLR 252, 286 [110] (Gordon J) citing Maxwell v Murphy (1957) 96 CLR 261, 267 (Dixon CJ); Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285, 309 [57]-[58] (McHugh and Gummow JJ). See also Roamn Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234, 267 [115] (Beach, Kaye and Osborn JJA).
[16]See e.g.: SOCA (n 5) s 8(1) – being named as father on the birth certificate; SOCA (n 5) s 8(2) - acknowledgment by signed deed by the mother or any person that he is the father of the child; SOCA (n 5) s 8(5) - order of a court declaring a person to be a parent.
Of particular relevance to the present case are ss 5 and 7 of the SOCA. Section 5 is a general provision describing the circumstances in which a presumption of parenthood arises. It provides as follows:
Presumptions as to parenthood
A child born to a woman during her marriage or within ten months after the marriage has been dissolved by death or otherwise shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband, or former husband, as the case may be.
Section 7 of the SOCA concerns recognition of parentage and specifically addresses the relationship of father and child in the context of inheritance in the following terms:
Recognition of paternity
(1) The relationship of father and child and any other relationship traced in any degree through that relationship shall, for any purpose related to succession to property or to the construction of any will or testamentary disposition or of any instrument creating a trust or for the purpose of a claim for a family provision order under Part IV of the Administration and Probate Act 1958, be recognized only if—
(a) the father and the mother of the child were married to each other at the time of its conception or at some subsequent time; or
(b) paternity has been admitted (expressly or by implication) by or established against the father in his lifetime and, if the father is a beneficiary of the child, paternity has been so admitted or established while the child was living.[17]
[17]SOCA (n 5) s 7 (emphasis added).
Section 2 of the SOCA defines ‘marriage’ as follows:
(1) For the purposes of this Act “marriage” includes a void marriage and married has a corresponding interpretation. (emphasis added)
Section 5 of the SOCA describes a presumption of fatherhood that arises where a child is born:
(a)during a marriage (the first limb); or
(b)within ten months after ‘the marriage has been dissolved by death or otherwise’ (the second limb).
The first question is whether the words ‘a marriage’ in the first limb of s 5 of the SOCA should be read to include a void marriage. The principles in relation to the use of definitions in construing statutes were considered in Kelly v R,[18] where McHugh J said:
… [T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better — I think the only proper — course is to read the words of the definition into the substantive enactment and then construe the substantive enactment — in its extended or confined sense — in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment…[19]
[18](2004) 218 CLR 216; discussed in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 370, [13]-[18] (Basten, Macfarlan and Leeming JJA).
[19]Ibid 253 [103].
If the extended definition (in s 2 of the SOCA) of marriage which includes a void marriage is read into s 5, then the presumption of fatherhood will arise where a child is born during a void marriage, that is I take it, before a decree of annulment. That construction is consistent with the objects and purpose of the SOCA to ‘remove the legal disabilities of children born out of wedlock.’ There is no apparent reason why a child born out of wedlock because a marriage is void should remain subject to legal disabilities that the SOCA was enacted to overcome. Such an interpretation would be inconsistent with the purpose of the Act and contrary to the extended definition in s 2.
The proper construction of s 5 is that the reference to ‘a marriage’ in the first limb includes a void marriage, such as bigamous one. I do not consider that the reference to ‘dissolution’ but not ‘annulment’ in the second limb impliedly excludes void marriages from the first limb. Each limb of s 5 should be read consistently with the objects and purposes of the SOCA insofar as they reasonably can be.
The next question concerns the proper construction of the second limb of s 5 of the SOCA. More precisely, does the second limb of s 5 enliven a presumption of parenthood where a child is born within 10 months of a decree of nullity, or only within 10 months of a dissolution.
The second limb of s 5 is expressed to apply where a child is born within 10 months ‘after the marriage has been dissolved by death or otherwise.’ The structure of this phrase is such that the word ‘dissolved’ qualifies the words ‘death’ and ‘otherwise.’ There are significant differences between dissolution and annulment. ‘Dissolution’ describes the termination of a marriage, and proceeds on the basis that there was a valid marriage which subsists until dissolved.[20] ‘Annulment’ on the other hand, describes the formal recognition of the fact that there was no marriage in law because it was void. In that latter case there is nothing to dissolve, as the marriage is void ab initio.[21]
[20]Anderson v McIntosh (2013) 283 FLR 361, 368 [42] (Bryant CJ & Thackray J); Ford v Ford (1947) 73 CLR 524 (Latham CJ, Starke, Dixon, McTiernan and Williams JJ) (‘Ford v Ford’).
[21]This concept is reflected in the note after the definition of ‘divorce’ in the Family Law Act 1975 (Cth) s 4.
The history of these two processes (dissolution and annulment) can be traced back through the Ecclesiastical Court that, prior to 1857, exercised jurisdiction over the sacrament of marriage. Under Ecclesiastical Law, the only relief that could be obtained to displace obligations of marriage was either a decree of nullity or a divorce a mensa et thoro.[22]The former was an acknowledgement that there was never a marriage, the latter relieved the parties of the ‘misery and ignominy of a joint life in one household’[23] but did not change their status as being married.[24] That is, it was not an absolute dissolution. Prior to 1857, the only way to obtain an absolute dissolution of a marriage was by a private Act of Parliament.[25] The Matrimonial Causes Act 1857 (UK) created a new divorce court and granted it the power previously exercisable by private Act of Parliament to make orders for absolute divorce, as well as granting it all of the Ecclesiastical powers in relation to marriage including the power to decree nullity, or order ‘judicial separation’ which was essentially a new name for divorce a mensa et thoro.[26] In 1899, New South Wales introduced legislation mirroring the 1857 UK Act in the Matrimonial Causes Act 1899 (NSW) (‘MCA’), which is the Act that applied when Ms Sholl and Mr Bull were married. The MCA conferred jurisdiction on the New South Wales Supreme Court to dissolve a marriage, and included a provision in s 5 that other than proceedings for dissolution or alimony, the Court is to give effect to the principles and rules applied in the Ecclesiastical Courts of England.
[22]Which translates to ‘from table to hearth.’
[23]Wolters Kluwer, Australian Family law Commentary, (online at 2 September 2024) ¶102.
[24]See e.g. Ford v Ford (n 20) 527, 530.
[25]See discussion in PGA v R (2012) 245 CLR 355.
[26]Ibid 381 [54] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
The difference between dissolution and annulment as discussed above is significant historically and, it must be accepted, was well known when the MCA was drafted and passed. Section 4 describes the jurisdiction of the Court as including ‘… jurisdiction in respect of divorces a mensa et thoro suits of nullity of marriage suits for dissolution of marriage …’. Other sections of the MCA specifically deal only with ‘dissolution’[27] and identify the various bases upon which a marriage may be dissolved, or explicitly acknowledge the distinction between ‘dissolution’ and ‘annulment.’[28] That being the case, the second limb of s 5 of the SOCA can be read as extending to annulments only if it can be read as follows:
A child born to a woman during her marriage or within ten months after:
(a) the marriage has been dissolved by death or otherwise [or
(b) the marriage has been annulled]
shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband, or former husband, as the case may be.
[27]See Matrimonial Causes Act 1899 (NSW) ss 12-21.
[28]Ibid ss 29, 30.

This can only be done by adding words to the section that expands its literal meaning. In Taylor v Owners—Strata Plan No 11564[29] a majority of the High Court, held:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision … It is answered against a construction that fills ‘gaps disclosed in legislation’ … or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.[30]
[29](2014) 253 CLR 531.
[30]Ibid 548 [38] (French CJ, Crennan and Bell JJ; Gageler and Keane JJ dissenting).
The majority went on to adopt what was said by McHugh J in Newcastle City Council v GIO General Ltd[31]:
[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.[32]
[31](1997) 191 CLR 85.
[32]Ibid 113 (Toohey, Gaudron and Gummow JJ).
In this case, I do not consider that the second limb of s 5 of the SOCA can be construed to extend to decrees of annulment. The difference between ‘dissolution’ and ‘annulment’ is substantive and must have been well known when the legislation was drafted, but the legislature chose to use the word dissolution only. Having regard to the objects of the SOCA, it may be that this limited application of the second limb to dissolution only is an error. But if it is an error, then that error can only legitimately be remedied by the legislature.
The central questions arising under s 5 of the SOCA therefore are:
(a)Was Ms Sholl married (as that term is defined in s 2 of the SOCA) to Mr Bull when the deceased was:
(i)born, or
(ii)within 10 months of the ‘dissolution’ of the marriage?
(b)If the answer is yes to either (a)(i) or (ii), is there evidence to rebut this presumption, that is, establishing on the balance of probabilities that Mr Bull was not the father?

Consideration

For the purposes of the presumption that may arise by reason of s 5 of the SOCA, the fact to be established is that Ms Sholl and Mr Bull were married at the relevant time. If that fact is established, then the presumption will arise, and if that fact is not established, then it will not. The requisite standard of proof is the civil standard on the balance of probabilities. The question is not of such importance or gravity that considerations in Briginshaw v Briginshaw[33] apply.[34]
[33](1938) 60 CLR 336.
[34]G v H (1994) 181 CLR 387, 399 (Deane, Dawson and Gaudron JJ) (‘G v H’); Farnell v Penhalluriack (No 2) [2008] VSC 214, [4] (Bell J) (‘Farnell).
The plaintiff submits that the deceased ‘was born during the marriage between Joan Sholl and Leslie Bull’ and ‘was born more than 10 months after that marriage’ and submits that ‘accordingly both under s 5 of the SOCA and at general law the deceased is presumed to be the child of Leslie Bull.’[35] But there is no direct evidence as to when the marriage ended, or how it ended, and therefore it is not obviously the case that the deceased was born ‘during the marriage,’ or within 10 months of its ‘dissolution.’
[35]Plaintiff’s submissions filed on 26 June 2023, [15].
The only positive evidence as to marriage is the registration of the marriage, and that is evidence as to Ms Sholl and Mr Bull’s marital status on 5 October 1950.
The next chronologically relevant evidence is that Mr Bull is not named as the father on the deceased’s birth certificate on 13 February 1952, and Ms Sholl uses her maiden name on that certificate. This suggests that at that time the relationship, and therefore the marriage, had ended, but it is by no means conclusive.
Then there is the evidence that Mr Bull pleaded guilty to bigamy on 27 February 1953, and of Ms Sholl appearing on the electoral roll in 1954 under her maiden name, which suggests that the relationship, and therefore marriage, had failed prior to those dates, but not precisely when. There is also evidence from electoral records that Ms Sholl only ever lived with the deceased after that and not with Mr Bull or anyone else.
While the above evidence does suggest the relationship ended by the time of the deceased’s birth, there is no direct evidence of annulment or dissolution. That is, the searches that Ms Church conducted of the Registry of Births, Deaths and Marriages appears not to have produced any record of dissolution or annulment. It is unclear how complete the records are, but it might be expected that if the marriage was annulled or dissolved sometime after 1950, that records would be kept and available.
On balance, I am satisfied that Ms Sholl and Mr Bull were married, as that term is defined in the SOCA, at the time of the deceased’s birth. I reach that conclusion primarily based on the fact that the marriage was registered in 1950, and there are no records of any dissolution or annulment prior to the deceased’s birth 16 months later, or at any time after that. The evidence suggesting the relationship had ended by the deceased’s birth only goes so far. It does not mean that Ms Sholl and Mr Bull took positive steps to annul or dissolve their marriage. They may have done so, but they also may not have done so. In the circumstances, the fact that there is no record of any annulment or dissolution suggests on balance that it did not occur.
That being the case, the presumption that Mr Bull was the deceased’s father arises by operation of s 5 of the SOCA and the question is whether there is evidence to rebut that presumption. For the following reasons I have concluded there is not.
Unlike other State legislation,[36] the standard of proof required to rebut the presumption is not specified in the Victorian Act. In the absence of any other identified standard in the Victorian Act, I will proceed on the basis that the standard required is the civil standard of the balance of probabilities.[37]
[36]Parentage Act 2004 (ACT) s 12(b); Status of Children Act 1978 s 16(1) (NT); Status of Children Act 1996 (NSW) s 15(1); Status of Children Act 1978 (Qld) s 19F; Status of Children Act 1974 (Tas) s 19; Family Court Act 1997 (WA) s 193(1).
[37]See G v H (n 34) 391-92 (Brennan and McHugh JJ), 399 (Deane, Dawson and Gaudron JJ); Re Della Vedova [2012] VSC 341, [20] (Habersberger J); Farnell (n 34); Helebrant v Perdic [2010] VSC 580, [25], [28] (Beach J) (‘Helebrant’); State Trustees Limited v Valentin Jeklar & Ors: IMO the estate of Franc Jeklar [2019] VSC 267, [61] (Daly AsJ) (‘IMO the estate of Franc Jeklar’).
There is very limited evidence suggesting that Mr Bull was not the deceased’s father. There is no evidence that Ms Sholl had any other relationship in which case Mr Bull is the prime and only known candidate to have fathered the deceased. Assuming an average term pregnancy, the deceased was conceived about 7 months after the marriage in May 1951. And although Mr Bull was not named as the father on the birth certificate, the deceased was named ‘Leslie Norman’ which are Mr Bull’s first two names. That is unlikely to have been a co-incidence. There may have been other reasons for naming the deceased ‘Leslie Norman’ and it is possible Mr Bull was not the father, but there is insufficient evidence to displace the presumption arising as discussed above.
Because the question in this case concerns succession, the presumption of parenthood is not sufficient and the relationship of father and child will be recognised for present purposes only if the requirements of s 7 of the SOCA are met. Section 7(1) provides:
The relationship of father and child … shall, for any purpose related to succession to property … be recognized only if—
(a) the father and the mother of the child were married to each other at the time of its conception or at some subsequent time…
(emphasis added)
…
The plaintiff submitted that the Court ‘can rely on s 7(1)(a) … to presume the deceased was a child of Leslie Bull…’[38] I do not agree that the section operates to give rise to any presumption. Rather, s 7 of the SOCA describes matters that must be established before the relationship of father and child may be recognised for the purposes of succession. Section 7(1)(a) of the SOCA requires proof of paternity[39] and that the father and mother were married at the time of conception or some subsequent time.[40] If those matters are proved, then paternity may be recognised for succession purposes.
[38]Plaintiff’s submissions filed on 28 August 2024, [11].
[39]Helebrant (n 37) [6]-[8] (Beach J) which concerned the application of s 7(1)(b) of the SOCA but nonetheless states the requirement to establish paternity which is in the preamble of s 7(1). See also In re XY; ex parte State Trustees Ltd [2001] VSC 89, [16] (Byrne J) and IMO the estate of Franc Jeklar (n 37) [57] (Daly AsJ).
[40]This includes the extended definition of ‘married’ in s 2 of the SOCA. It has not been suggested that paternity was admitted by, or established against, Mr Bull during his and the deceased’s lifetime, so s 7(1)(b) does not apply.
For the reasons discussed above in relation to s 5, the requirements of s 7(1)(a) are met. The requirement of proof of paternity is established by the presumption that has arisen under s 5 of the SOCA. The second requirement that the father and mother were married at the time of conception or subsequently has also been established for the reasons discussed in relation to s 5 of the SOCA.

Conclusion

For those reasons I am satisfied that the relationship of father and child existed between the deceased and Leslie Norman Bull. I direct the plaintiff to provide draft orders giving effect to these reasons including such orders as to costs as are sought.

[2024] VSC 536

2 September 2024