Scott-Mackenzie v Bail
[2017] VSCA 108
•10 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0169
| JOHN EWEN SCOTT-MACKENZIE (AS EXECUTOR OF THE WILL OF SIEGFRIED RUOPP, DECEASED) | Appellant |
| v | |
| LAURACE BAIL | Respondent |
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| JUDGES: | BEACH and FERGUSON JJA and McMILLAN AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 April 2017 |
| DATE OF JUDGMENT: | 10 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 108 |
| JUDGMENT APPEALED FROM: | [2016] VSC 563 (Derham AsJ) |
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APPEALS – Court of Appeal – Appeal against decision of Associate Justice reserved to Court of Appeal – Supreme Court Act 1986, s 17B.
STATUTORY INTERPRETATION – Text of legislation – Legislative intention – Whether Parliament intended to include the child of a deceased’s domestic partner within the meaning of ‘stepchild’ – Where interpretation begins with the statutory text read in context – Whether use of extrinsic materials required – Interpretation of Legislation Act 1984, s 35.
FAMILY PROVISION – Application by adult daughter of deceased’s former domestic partner – Whether appellant an ‘eligible person’ – Whether appellant a ‘stepchild’ within the meaning of pt IV of the Administration and Probate Act 1958 – Popple v Rowe [1998] 1 VR 651 referred to – Administration and Probate Act 1958, s 90.
WORDS AND PHRASES – ‘stepchild’ – ‘eligible person’.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R R Boaden | Devenish Lawyers |
| For the Respondent | Mr J D Catlin | Armstrong Legal |
BEACH JA
FERGUSON JA
McMILLAN AJA:
Introduction
Siegfried Ruopp, deceased (‘the deceased’) was born on 10 February 1938 and died on 17 January 2016. He never married and did not have any children.
The respondent was born on 16 December 1939. Her mother is Valerie Grace Holmes. In 1960, the deceased and Ms Holmes commenced living in a domestic relationship. Ms Holmes died on 26 October 2001. Following the death of the respondent’s mother, the deceased commenced a domestic relationship with Margaret Jean Rooke. Upon his death, the deceased left his estate to her.
Probate of the deceased’s will dated 27 January 2004 was granted to the appellant on 7 March 2016. The deceased’s estate was valued for probate at $959,957 and comprised a property in Ringwood valued at $700,000, an amount of $250,000 in bank accounts and an old car.
The respondent claims she is the stepchild of the deceased and eligible to make a claim for provision pursuant to pt IV of the Administration and Probate Act 1958 (‘the Act’), as amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (‘the 2014 amendments’).
Application for summary dismissal of respondent’s claim
By summons filed 15 July 2016, the appellant sought to dismiss the respondent’s claim on the ground that the respondent is not an eligible person within the meaning of s 90 of the Act and her claim has no real prospects of success.[1]
[1]Civil Procedure Act 2010, s 62.
The determination of the summary dismissal application depended on whether the respondent, as a child of a former domestic partner of the deceased, is a stepchild of the deceased. Section 90 of the Act defines ‘eligible person’. Paragraph (f) of the definition includes a ‘stepchild’ of the deceased. The Act, however, does not define ‘stepchild’. If the respondent is not a stepchild of the deceased, she is not an eligible person under the Act and cannot make a claim for family provision from his estate.
The appellant contended that if a claimant’s mother or father lived in a domestic relationship with the other person, then the claimant does not attain the status of a stepchild. As the deceased was never married to the respondent’s mother, the respondent never was, and is not, his stepchild.
Background to the 2014 amendments
A family provision order has the effect of altering the will of a deceased or the intestacy provisions applicable to a deceased’s estate.[2] There are no rights at general law to alter the distribution of a deceased’s estate otherwise than in accordance with a testator’s wishes. Until 20 July 1998, the eligibility requirements under the family provision legislation in Victoria provided for claims made by a deceased’s surviving spouses and children. Stepchildren could not apply for provision.
[2]Any order for further provision is to be treated as a codicil where the deceased had a will or as a modification of the intestacy provisions where the deceased did not have a will: Administration and Probate Act 1958, s 97(4).
In 1998, the Victorian Court of Appeal decision of Popple v Rowe considered the family provision legislation prior to amendments made to the Act commencing on 20 July 1998.[3] Under the prior legislation, children were eligible applicants but stepchildren were not specifically included in that definition. This definition of children had been taken to mean within the profession that stepchildren did not have standing to make a claim for family provision.
[3]Wills Act 1997, s 55 (as in force prior to 20 July 1998).
This interpretation was tested before the trial judge in Rowe v Popple[4] who held that ‘children’ included stepchildren and, accordingly, stepchildren were eligible to make a claim for family provision. The decision of the trial judge was reversed on appeal with the Court of Appeal[5] determining that ‘children’ in the legislation meant natural children and did not include stepchildren. The Court regarded marriage as being integral to the existence of a stepchild relationship and determined that for a claimant to be a stepchild of another person, it is essential that the claimant’s mother or father is or was married to that other person. The Court viewed a person’s relationship with a person being either a stepfather or a stepmother as dependent upon the natural parent being married to the putative step-parent, not simply in a relationship with the putative step-parent. This meant that marriage was the relationship that had to exist between a parent and a putative step-parent in order for the parent’s child to claim the step-parent as such and marriage was required for the stepchild relationship to arise in the context of the family provision legislation prior to 20 July 1998.
[4]Rowe v Popple (Unreported, Supreme Court of Victoria, Nathan J, 14 February 1997).
[5]Popple v Rowe [1998] 1 VR 651 (Winneke P, Brooking and Hayne JJA) (‘Popple’).
After the decision in Popple, amendments to the Act with effect from 20 July 1998 (‘the 1998 amendments’) replaced the category based eligible applicant approach with a ‘responsibility test’, [6] with any person able to make a claim if a court were persuaded that the deceased person owed a claimant a responsibility, interpreted by the cases as a moral duty or obligation, to make provision for his or her maintenance and support.[7] The definition of stepchild did not arise under the 1998 amendments as a testator’s moral duty underscored the family provision jurisdiction.
[6]Wills Act 1997, s 55 (as in force on 20 July 1998).
[7]Whitehead v State Trustees Ltd [2011] VSC 424 [21]–[47] (Bell J).
The 2014 amendments commenced on 1 January 2015 and replaced the responsibility test contained in the 1998 amendments with a category based eligible applicant approach. The 2014 amendments are the relevant provisions applicable to this appeal.[8]
[8]Justice Legislation Amendment (Succession and Surrogacy) Act 2014, s 2(1); Victoria, Victoria Government Gazette, No S400, 29 October 2014, 2.
The 2014 amendments had their genesis in a review of Victorian succession laws by the Victorian Law Reform Commission (‘the VLRC’) at the request, in 2012, of the then Attorney-General. In respect of family provision, the VLRC was asked to review and report whether the family provision legislation, that is, the 1998 amendments, was operating justly and effectively, having regard to its objective of providing for the proper maintenance and support of persons for whom a deceased had a responsibility to make provision.[9]
[9]Victorian Law Reform Commission, Succession Laws, Report No 26 (2013), page x.
After extensive consultation, the Victorian Law Reform Commission Report entitled ‘Succession Laws’ (‘the VLRC Report’) was prepared and tabled in Parliament on 15 October 2013. The VLRC Report recommended change in relation to the threshold determination of who was an eligible person by replacing its ‘responsibility’ test for eligibility to make a family provision claim with a test based on the New South Wales test for eligibility, but extended to include stepchildren.[10] It was suggested that this amendment would increase certainty and decrease the number of opportunistic claims while still providing sufficient flexibility for eligible applicants.[11]
[10]Ibid 114.
[11]Ibid 111–4.
The VLRC Report listed its recommended category of eligible persons who may apply for a family provision order, and included ‘a child of the deceased person’ and ‘a stepchild of the deceased person’. A footnote next to the word ‘child’ provided:
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.[12]
[12]Ibid 114.
The 2014 amendments were introduced in the Legislative Council on 19 August 2014 and the second reading of the Bill took place on 20 August 2014. The Explanatory Memorandum described the aim of the Bill as being ‘… to ensure that Victorian succession laws operate justly, fairly and in accordance with community expectations in relation to the way that property is dealt with after a person dies’.[13] Clause 3 of the Explanatory Memorandum to the Bill referred to the insertion of the definition of eligible person, including that an eligible person means:
…
(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) …
[13]Explanatory Memorandum, Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, 1.
After unrelated amendments were made to the Bill, it was passed in the Legislative Council on 16 September 2014 and introduced in the Legislative Assembly. The Bill was read for a second time in the Legislative Assembly on 18 September 2014. Further debate took place on 15 and 16 October 2014, with the Bill being passed on 16 October 2014.
Judgment below
The primary judge held that the respondent is an eligible person under s 90 of the Act, finding as follows:
(a) 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.
(b) The doubt or ambiguity as to the legislative intention is resolved by the Explanatory Memorandum accompanying the introduction of the 2014 amendments. The 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.
(c) Although the relationship of step-parent 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.
(d) By analogy with the common law position of a stepchild of a marriage, the relationship of step-parent and stepchild of a domestic partnership for the purposes of pt IV of the Act 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 step-parent and stepchild continues.[14]
[14]Bail v Scott-Mackenzie [2016] VSC 563 [5]–[8], [118]–[120] (‘Reasons’).
The appeal
The appellant appeals against the whole of the judgment of the primary judge. Pursuant to s 17B of the Supreme Court Act 1986, the appeal was reserved for consideration by this Court. At the commencement of argument, we granted leave, pursuant to s 17B(3), for the appeal to be argued before us.
Grounds of appeal
The grounds of appeal may be summarised as follows:
(a) His Honour was wrong in law and in fact in holding that:
(i) the respondent had ever been a stepchild of the deceased as the deceased and the respondent’s mother were never married; and
(ii) the respondent, whose mother had never been married to the deceased, was a stepchild of the deceased within the meaning of s 90 of the Act.[15]
[15]Grounds of appeal 2 and 4.
(b) His Honour was wrong in law in holding that:
(i) children of persons who are or have been in a domestic relationship but who have not married are stepchildren; and
(ii) the respondent was an ‘eligible person’ within the meaning of s 90(f) of the Act.[16]
[16]Grounds of appeal 3 and 5.
Appellant’s submissions
The appellant submits that his Honour was wrong in law and fact in holding that the respondent had ever been a stepchild of the deceased as the deceased and the respondent’s mother were never married and, therefore, his Honour was wrong in holding that the respondent was an eligible person under s 90 of the Act.
The appellant says that a signal change in the 2014 amendments was to move to a category based eligibility for family provision claims, with defined categories. This change makes it all the more important to construe the legislation carefully and accurately in order to decide whether a candidate is, or is not, an eligible person as defined in s 90 of the Act. While his Honour accepted that ‘the ordinary and natural meaning of the term stepchild is that the parent of the child is married to the putative step-parent’,[17] he ruled that ‘the term stepchild includes the child of a parent who was in a domestic partnership with the deceased’.[18] His Honour’s reasoning was that ‘a wider meaning of stepchild gains some support from the inclusion of domestic partners as eligible persons’ in s 90 of the Act and that no distinction is drawn between a spouse and a domestic partner, both being considered equal in their eligibility. His Honour said this was presumably aimed to give effect to societal attitudes that married and unmarried couples are afforded the same, or near identical rights.[19]
[17]Reasons [25].
[18]Ibid [113].
[19]Ibid [50]–[51].
The appellant submits that while his Honour referred to the VLRC Report making a recommendation that the test for eligibility to make a family provision order should be extended to stepchildren, his Honour failed to make any reference to footnote 156 of Chapter 6 of the VLRC Report. This footnote noted that in New South Wales there is a statutory definition of ‘child’ in the context of a domestic relationship and importantly stated that ‘consideration would need to be given to the definition of “child” in Victoria in these circumstances’.[20] His Honour noted that it is not known whether those framing the legislation took up the suggestion in the VLRC Report to give consideration to defining ‘child’ in the new legislation.[21] The appellant submits that whether such consideration was or was not given, the 2014 amendments did not, in fact, include any definition of ‘child’ that would encompass a stepchild.
[20]Victorian Law Reform Commission, Succession Laws, Report No 26 (2013), 114.
[21]Reasons [65].
The appellant submits that his Honour presumed that it was because of the provisions of the Status of Children Act 1974 that the legislature ‘took up the recommendation of the [VLRC] to specifically include stepchildren, but without any definition’.[22] His Honour noted that save for the Explanatory Memorandum and the speech of a parliamentarian, none of the parliamentary materials bear upon the meaning to be attributed to the term ‘stepchild’.[23]
[22]Ibid [117].
[23]Ibid [69].
After his examination of the history and background to the legislation, his Honour reasoned as follows:
… 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’.
… 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’s] death …[24]
[24]Ibid [76], [80].
The appellant submits that his Honour’s conclusion was wrong because instead of applying the legislation and interpreting the word ‘stepchild’ in the manner in which it has been interpreted in all of the decided cases referred to at trial, his Honour preferred to apply a ‘wider’ meaning that he also recognised as being ‘loose’. He did this not by reference to case law, all of which requires a marriage for the stepchild relationship to arise, and interpretation of the words used in the legislation, but by looking at the Status of Children Act 1974 and by reasoning from the ‘equal’ treatment of spouses and domestic partners and then deducing that Parliament intended that their offspring should be treated equally. This was notwithstanding that the VLRC Report had specifically advised that in order to achieve this, further attention was required to the detail of the definition of ‘child’. His Honour found support for his approach by reference to the Explanatory Memorandum that said the definition of ‘stepchild of the deceased’ in the Bill was ‘not limited to a deceased’s spouse but also includes a child of the deceased’s domestic partner’. The appellant submits this is plainly wrong and has no basis at all.
The appellant submits that had Parliament intended to subsume children of partners in a domestic relationship into the category of stepchild, then not only would it have said so by specifically expanding the definition of stepchild beyond that which is universally accepted, but it would also have had to deal with the consequential issues that arise. The inclusion of a stepchild as an eligible person for the purposes of family provision legislation has certain difficulties. If a claimant’s parent was married to a deceased, but predeceased the deceased, does a claimant retain the status of stepchild and eligibility to make a claim or does that status cease with the death of the claimant’s parent? If the marriage of the claimant’s parent to the deceased ends with divorce, does that terminate the claimant’s status as a stepchild? The relationship of the respondent’s mother with the deceased ended when she died. The deceased entered into a new domestic relationship after the death of the respondent’s mother. The appellant submits that, on any view, the respondent was not the stepchild of the deceased at the date of his death.
The appellant submits that, notwithstanding these difficulties, his Honour considered the consequences for the stepchild if the relationship between his or her parent and the deceased terminated during the life of both or upon the death of the parent. Perhaps recognising the difficulties which his construction of the legislation created, his Honour expressed his view in tentative terms:
… 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.[25]
[25]Ibid [108].
His Honour concluded that the doubt is ‘resolved’ by the Explanatory Memorandum. The appellant submits that the Explanatory Memorandum is incapable of ‘shouldering the burden’ of justifying a loose construction of the legislation. The words in parenthesis in the Explanatory Memorandum do not justify the approach adopted by his Honour and he should have heeded the warning given by Winneke P in Popple to the effect that the fact that the legislation is remedial means the Court should be liberal in the exercise of terms of settlement powers but it ‘cannot mean … that it is to be benevolent in its interpretation of those who are or may be eligible to make application’.[26]
[26]Ibid [74], citing Popple at 659.
The appellant submits that the whole approach of his Honour in drawing inferences from the way in which the legislation accords both de jure and de facto spouses’ eligibility to make family provision claims and reasoning that this should extend to children whom de facto spouses may bring to a domestic relationship is flawed and unsubstantiated.
Principles of statutory construction
This appeal involves a pure question of statutory construction. The relevant principles of statutory construction are not in dispute.
The task of statutory construction must begin and end with a consideration of the text itself. The meaning of the Act is to be derived from its text, context and purpose.[27] Additionally, s 35 of the Interpretation of Legislation Act 1984 provides that, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object; and consideration may be given to reports of law reform commissioners, reports of proceedings in any house of the Parliament and explanatory memoranda presented to any house of the Parliament.
[27]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(Northern Territory) (2009) 239 CLR 27; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Thiess v Collector of Customs (2014) 250 CLR 664; Talacko v Bennett [2017] HCA 15 [82].
Analysis
The single issue in this appeal concerns the meaning of the word ‘stepchild’ in the definition of ‘eligible person’ in s 90 of the Act. Section 90 was enacted in 2014 as part of a suite of amendments to the Act to reintroduce category based eligibility for applications under pt IV of the Act. The word ‘stepchild’ appears in paragraphs (c), (f) and (j) of the definition of ‘eligible person’ but the word ‘stepchild’ is not defined in the Act.
Section 90 of the Act defines ‘eligible person’ as follows:
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 paragraph (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 a 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.
As we have already said, the respondent contends that a child of a deceased’s domestic partner is a stepchild within the meaning of the Act and, more particularly, within the meaning of s 90 of the Act. The appellant contends that such a child cannot be the deceased’s stepchild unless the deceased was married to that child’s other parent.[28]
[28]At first instance, there was also an issue about whether, if there was a relationship of step-parent and stepchild arising from a domestic partnership, that relationship terminated upon the death of the original parent. That issue, however, was not pursued on appeal, and the appellant accepted that if the respondent was a stepchild of the deceased then that relationship survived the death of her mother: see Re Cook (1985) 156 CLR 249, 263 (Deane J).
The primary judge surveyed a number of dictionary meanings of the words ‘stepchild’, ‘stepson’ and ‘stepdaughter’.[29] Some dictionary definitions (usually older ones) define stepchildren as being the children of a husband or wife’s former marriage. In those definitions it would seem that both the first and second relationship entered into by the biological parent had to be a marriage. Other definitions talk in terms of a child of a husband or wife’s former marriage or relationship, suggesting that only the second relationship need be a marriage. The New Shorter Oxford Dictionary published in 1993, however, defines stepchildren as children by another marriage or relationship ‘of one’s husband or wife or loosely the person with whom one lives as if married’. If this definition were to be accepted as the natural and ordinary meaning of ‘stepchild’ in the Act then the respondent would be an eligible person, falling within paragraph (f) of the definition of eligible person.
[29]Reasons [43].
In the definition of ‘eligible person’ in s 90 of the Act, spouses and domestic partners are given identical treatment in all instances. There are three relevant categories. One is ‘a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death’.[30] The expression ‘domestic partner’ is defined in s 3 of the Act to mean a ‘registered domestic partner’ or an ‘unregistered domestic partner’. The expressions ‘registered domestic partner’ and ‘unregistered domestic partner’ are then themselves defined in s 3 as follows:
[30]Paragraph (a) of the definition.
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.
The second category is a former spouse or former domestic partner of the deceased if:[31]
[31]Paragraph (e) of the definition.
…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;
The last is a spouse or domestic partner of a child[32] of the deceased if the child dies within one year of the deceased’s death.[33]
[32]Including a stepchild or a person referred to in paragraph (d) or (g) of the definition of ‘eligible person’.
[33]Paragraph (j) of the definition.
It is plain that in enacting the current version of s 90 of the Act, the Parliament intended that, so far as eligibility to make claims under pt IV of the Act was concerned, there would be no discrimination between, or different treatment of, a person who was a spouse of a deceased and a person who was a domestic partner of a deceased. Moreover, there is nothing in the Act to suggest that it was the intention of Parliament to discriminate between, or treat differently, the previous child of a deceased’s spouse and the previous child of a deceased’s domestic partner. At one level it might be said that, for the purposes of the Act, the equal treatment of spouses and domestic partners determines the present issue in the respondent’s favour as that equal treatment has, as an incident of it, the equal treatment of their children.
Further, eligibility of children is identical to that of stepchildren. Both children[34] and stepchildren are eligible if, at the time of the deceased’s death, they were under 18 years of age, a full-time student aged between 18 and 25 years, or were a child or stepchild with a disability.[35] Secondly, children and stepchildren of the deceased to whom those descriptions do not apply are equally eligible.[36]
[34]Including adopted children.
[35]Paragraphs (b) and (c) of the definition respectively.
[36]Paragraph (f) of the definition.
Section 90 also puts children and stepchildren on par in terms of the eligibility of their spouses and domestic partners. A spouse or domestic partner of a child — there defined to include a stepchild, amongst others — is eligible if the child of the deceased dies within one year of the deceased’s death.[37] Thus all categories of eligibility for children and stepchildren, or others defined by reference to them, are coextensive.
[37]Paragraph (j) of the definition.
It is enough to observe that the Act treats spouses and domestic partners equally for one to then conclude that, as part of that equal treatment, it is likely that it was the intention of the Parliament to treat the children of spouses and the children of domestic partners equally. But this conclusion is reinforced when one observes that, in addition to treating spouses and domestic partners equally, the Parliament has treated children and stepchildren equally. It would be surprising if, having decided for eligibility purposes to treat spouses and domestic partners equally, and children and stepchildren equally, the Parliament intended to exclude children of domestic partners entirely.
This accords with the broader purpose of pt IV of the Act and family provision legislation generally, which is to ensure that testators make adequate provision from their estate for persons for whom they have a duty to provide. As Gleeson CJ said in Vigolo v Bostin:[38]
The mischief to which the original legislation was directed was the possibility of unjust exercise of testamentary capacity resulting in inadequate provision for a family member…The justification for conferring upon a court a discretionary power to intervene, and to make an order modifying the legal effect of the will, was explained in terms of familial obligation, not unnaturally or inappropriately described as moral.[39]
[38](2005) 221 CLR 191.
[39]Ibid 199 [11]. See also Barns v Barns (2003) 214 CLR 169, 173 [2] (Gleeson CJ), citing Schaefer v Schuhmann [1972] AC 572, 596 (Lord Simon); G E Dal Pont and K F Mackie, Law of Succession (LexisNexis Butterworths, 2013) 491–3 [15.9]–[15.12], 563–7 [17.60]–[17.64].
In our view, the current legislation recognises that the child of a deceased’s domestic partner attracts the ‘familial obligation’ of which Gleeson CJ spoke. Whilst the 2014 amendments were intended to limit the categories of persons eligible to make a claim under pt IV of the Act in an effort to restore certainty and clarity to the law,[40] it is not inconsistent with that purpose to construe ‘stepchild’ in the definition of ‘eligible person’ in s 90 of the Act as including the child of a domestic partner. Indeed, such a construction is compelled in the context of the otherwise equal treatment of spouses and domestic partners as eligible persons. To the extent that our construction might, in some cases, give otherwise unmeritorious claimants an opportunity to seek provision from an estate, those claims are likely to collapse under the weight of the discretionary factors in s 91 of the Act.
[40]Victorian Law Reform Commission, Succession Laws, Report No 26 (2013), 111–5.
Like the natural and ordinary meaning of most words, the natural and ordinary meaning of the word ‘stepchild’ is one that is capable of changing over time.[41] It was not fixed for all time by decisions in previous cases that were concerned with its meaning in different statutes and contexts.[42] The question in this case is whether the natural and ordinary meaning of the word ‘stepchild’, in the context of the present legislative regime, encompasses a previous child of a domestic partner. In our view, the answer to that question is yes.
[41]Popple [1998] 1 VR 651, 661 (Hayne JA).
[42]See Popple [1998] 1 VR 651, 654–5 (Brooking JA), 659 (Winneke P) and 662 (Hayne JA). Popple, as the primary judge correctly held, is no binding authority for the meaning of ‘stepchild’ as it appears in the current form of the Act: Reasons [88].
In modern life, domestic partnerships are no longer uncommon. They have become considerably more common than they were, say, 30 years ago. Domestic partnerships can, and frequently do, have all of the appearances of partnerships that are marriages and have been recognised by the Parliament as a legitimate alternative to marriage.[43] The fact that the word ‘stepchild’ came into existence at a time before domestic partnerships became more common explains why definitions have previously referred to either an original marriage and a subsequent marriage, or merely a subsequent marriage.
[43]See the Relationships Act 2008. Although notably the provisions of the Wills Act 1997 treat spouses and domestic partners unequally in the context of the revocation of wills, that is, a will may be revoked by marriage or divorce, subject to certain qualifications, whereas the existence or dissolution of a domestic relationship has no such effect: see Wills Act 1997, ss 13 and 14.
As we have already observed, Popple was a case concerning the version of pt IV of the Act that was in force prior to the 1998 amendments. The question in that case was whether the word ‘children’ in the version of s 91 in force at the time included stepchildren. Hayne JA said:
As the very words ‘stepson’, ‘stepdaughter’ and ‘stepchild’ make plain, the relationship between such a person and the spouse of his or her parent is not the relationship of parent and child. That is not to say that the relationship may not have all the hallmarks of loving care and nurture that should be found in the relationship between parent and child, but it is a different relationship.[44]
[44]Popple [1998] 1 VR 651, 661 (emphasis added).
Unlike the issue in Popple, there are no different words to describe the relationship between the child of a previous relationship and his or her natural parent’s current domestic partner. This is because, unlike the differences between child and stepchild identified by Hayne JA, it is difficult to see what difference, if any, there is between, on the one hand, the relationship of a new spouse of the natural parent with the child of that parent and, on the other hand, the relationship between a new domestic partner and a child in otherwise identical circumstances.
There is no doubt that the Parliament could have put the issue in dispute in this case beyond doubt by defining the word ‘stepchild’ to include a previous child of a deceased’s former domestic partner, particularly as it was put on notice of the issue by the VLRC Report.[45] That proposition, however, does not mean that the failure of the Parliament to take that step requires the word ‘stepchild’ to be given some meaning derived from, and referrable to, earlier times. That said, in our view, the applicant was correct when he submitted that there was no occasion to rely on any extrinsic materials in order to determine the meaning of the word ‘stepchild’. In the context of the other paragraphs of the definition of ‘eligible person’, we think it plain that the word encompasses a child of a deceased’s former domestic partner. Moreover, while it is not necessary to refer to any extrinsic material to arrive at the construction we favour, we are fortified in our conclusion by the reference in the Explanatory Memorandum that notes, in respect of paragraph (c) of the definition of eligible person in the current version of s 90 of the Act, that ‘stepchild is not limited to a deceased’s spouse but also includes a child of the deceased’s domestic partner’.[46]
[45]Victorian Law Reform Commission, Succession Laws, Report No 26 (2013), 114.
[46]Explanatory Memorandum, Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, 3.
For these reasons, the appeal will be dismissed.
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