Trembath v Trembath
[2017] VSC 369
•23 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S CI 2016 01848
IN THE MATTER of Part IV of the Administration and Probate Act 1958
AND IN THE MATTER of the Will and Estate of OLGA SERJOGIN TREMBATH (also known as Olga Serjogin) (in the Will called Olga S Trembath)
| SCOTT BENNETT TREMBATH | Plaintiff |
| v | |
| DIMITRI GEORGE TREMBATH (in the Will called Dimitri G Trembath) (as the Executor of the Will of Olga Serjogin Trembath, deceased) | Defendant |
---
JUDGE: | LANSDOWNE AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 August 2016 with further submissions to 23 May 2017 |
DATE OF JUDGMENT: | 23 June 2017 |
CASE MAY BE CITED AS: | Trembath v Trembath |
MEDIUM NEUTRAL CITATION: | [2017] VSC 369 |
---
FAMILY PROVISION – Application by stepchild – Father of plaintiff married to the testatrix – Father died before the testatrix - summary judgment sought for the defendant on the basis that plaintiff not a ‘stepchild’ as at the date of the testatrix’s death – Summary judgment refused – Arguable that Queensland and Tasmanian cases inapplicable or wrongly decided – Administration and Probate Act1958, s 90 – Re Burt [1988] 1 Qd R 23 distinguished – Re John [2000] 2 Qd R 322 not followed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Pitt | Maurice Blackburn |
| For the Defendant | Mr R B Phillips | Tolhurst Druce & Emmerson (now Pearce Webster Dugdales |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
This application and its procedural history.................................................................... 2
Summary of conclusions.................................................................................................... 4
Facts....................................................................................................................................................... 4
Submissions........................................................................................................................................ 5
Test for summary judgment............................................................................................................. 6
Legislative construction.................................................................................................................... 7
Previous authority.............................................................................................................................. 8
Queensland and Tasmanian cases............................................................................................. 8
High Court and Victorian authority......................................................................................... 13
Discussion.......................................................................................................................................... 16
Particular statutory context.............................................................................................. 16
Consideration of common law and US authority......................................................... 18
Potential relevance of a half sibling................................................................................ 21
Conclusion......................................................................................................................................... 21
Orders................................................................................................................................................. 21
HER HONOUR:
Introduction
This proceeding commenced by originating motion filed on 16 May 2016. The plaintiff seeks further provision from the estate of Olga Trembath, who he describes as his stepmother and who died on 3 July 2015. Probate of her will was granted to the defendant, her executor, on 17 December 2015.
The provisions relating to testators family maintenance i.e. the seeking of provision, or further provision, from an estate were amended in 2014 so as to restrict the persons who can apply for provision or further provision, with effect from 1 January 2015.
The plaintiff can only apply for further provision from the deceased’s estate if he is an ‘eligible person’ within s 90 of the Administration and Probate Act 1958 (‘the Act’). Paragraphs (c) and (f) of the definition of ‘eligible person’ apply expressly to a stepchild of a deceased. They provide as follows:
eligible person means—
(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;
…
(f)a child or stepchild of the deceased not referred to in paragraph (b) or (c);
The plaintiff contends that he is an eligible person within paragraph (c)(iii).
If he is unable to establish that he falls within that paragraph but can establish that he falls within paragraph (f), then he faces an additional hurdle in the determination of what order for further provision, if any, should be made. Section 91(4)(c) of the Act provides that:
(4)In determining the amount of provision to be made by a family provision order, if any, the Court must take into account—
…
(c)in the case of an eligible person referred to in paragraph (f) or (g) of the definition of eligible person, the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support; and
…
Although paragraphs (c) and (f) of the definition of ‘eligible person’ expressly refer to a ‘stepchild’, that word is not defined in the Act. The issue that arises in this application is whether, for the purposes of the Act, a person remains a stepchild of the spouse of his or her natural parent, if that natural parent has already died by the date of death of the spouse.
This application and its procedural history
The defendant contends that the plaintiff has no real prospect of success in establishing that he was Olga’s stepchild at the date of her death, because his father, Edmund Trembath (‘Edmund’) had predeceased her. The defendant submits that at law Edmund’s death ended the relationship of stepchild/stepparent between the plaintiff and Olga. By summons filed 9 June 2016 the defendant seeks that there be summary judgment for the defendant on that basis.
The summons was heard by me on 19 August 2016, after each party had filed written submissions. I reserved judgment on that day and sought further submissions on the legislative history on 22 August 2016. Each party provided further submissions in response to that enquiry on 29 August 2016.
The delivery of this judgment was thereafter delayed due to the following factors. On 20 September 2016 Associate Justice Derham delivered his judgment in Bail v Scott-Mackenzie.[1]In that judgment, Derham AsJ refused an application for summary dismissal of an application for provision by a plaintiff who claimed to be the stepchild of the deceased by a de facto relationship. Summary judgment was sought on two bases — first, that the child of a person in a domestic relationship with the deceased, but not married to him or her, is not a ‘stepchild’ within the meaning of s 90 of the Act, and secondly that even if such a child is a ‘stepchild’ for the duration of that relationship, he or she ceases to be a stepchild for the purposes of the Act if the domestic relationship ends before the death of the deceased. In that case the domestic relationship was said to have ended on the death of the applicant’s mother before that of her domestic partner, the testator. His Honour held that ‘stepchild’ in the Act includes the child of a person in a domestic relationship with the deceased, and that this stepchild relationship continues despite the death of the natural parent prior to that of the deceased unless the marriage or domestic relationship has been severed by some cause other than death.
[1][2016] VSC 563.
In reaching his conclusions, Derham AsJ regarded as persuasive a United States decision of the Washington State Supreme Court, In re Bordeaux’ Estate,[2] which had not been the subject of any argument before me. Accordingly, I invited the parties to put any further submissions arising from the decision of Derham AsJ. The plaintiff made a short further submission by email sent 26 September 2016 and the defendant made further written submissions dated 14 October 2016.
[2]37 Wash. 2d 561 (1950).
The judgment of Derham AsJ was then appealed to a trial judge, who in turn referred the appeal to the Court of Appeal. In view of these developments, I caused the parties to be informed that I would await the decision of the Court of Appeal on that appeal. It appeared at that time that the Court of Appeal would be invited to rule on both questions before Derham AsJ, including the question that arises in this application i.e. whether a child whose parent is in a relationship, married or de facto, with the deceased remains a stepchild if, before the death of the deceased, the natural parent has died.
As it transpired that issue was not pursued on appeal.[3] The grounds as argued were limited to the conclusion by Derham AsJ that the child of a person in a domestic relationship with the deceased, as well as the child of a person married to the deceased, may be a stepchild within s 90 of the Act.
[3]Scott-Mackenzie v Bail [2017] VSCA 108 at footnote 28.
Judgment on the appeal was delivered on 10 May 2017. The Court of Appeal gave leave to appeal, but dismissed the appeal and upheld the conclusion of Derham AsJ that a stepchild within the meaning of s 90 of the Act includes the child of a domestic partner of the deceased, as well as the child of a spouse of the deceased.
The parties thereafter made their final submissions, the plaintiff on 19 May 2017 and the defendant on 23 May 2017.
Summary of conclusions
For the reasons that I now elaborate I am not satisfied that the plaintiff has no real prospect of success because he cannot be, in law, a stepchild of the deceased. I generally agree with the reasoning applied by Derham AsJ in Bail v Scott-MacKenzie, although I prefer to express my conclusion in terms that the contention that the plaintiff is a stepchild cannot be said to be fanciful, and so is an issue that should go to trial if still disputed.
Facts
These facts are drawn from the plaintiff’s affidavit affirmed 26 May 2016. For the purposes of this application they are not disputed.
The plaintiff was born on 21 September 1958 and so is now 58 years of age. He is the third child of Edmund by his first marriage and has two older brothers of that marriage. Edmund and the plaintiff’s mother divorced in 1961 and Edmund married the testatrix, Olga, in 1962. The defendant is the only child of that second marriage. The plaintiff does not directly depose to the date of Edmund’s death, but a letter written by his solicitors on his behalf that is exhibited to his affidavit[4] states that Edmund died on 17 March 2012. The application was argued on the basis that Edmund predeceased Olga. On this application, that is the critical fact.
[4]SBT-7.
By Olga’s will, the plaintiff receives a modest pecuniary legacy, as do other members of the plaintiff’s extended family and some organisations. The balance of Olga’s estate passes to the defendant. The plaintiff in his affidavit deposes to medical conditions by reason of which he says that he suffers one or more disabilities within the meaning of the Act; to his financial position; and to other matters relevant to his application.
The plaintiff and one of his full brothers, David, have also made application for further provision from the estate of their father, Edmund.[5] The defendant in this case is also the executor of Edmund’s estate, and so is also the defendant to those other proceedings. All three proceedings are to be heard together.
[5]S CI 2016 1846 and S CI 2016 853 respectively.
Submissions
The defendant relies on a series of cases determined in Queensland, and followed in Tasmania, to the effect that a person who was a stepchild of the spouse of his or her natural parent ceases to be one when that marriage ends, and that is so whether the marriage ends by divorce or by death. In the submissions he made following the judgment by Derham AsJ, counsel for the defendant submits that I am not bound to follow His Honour, and should not do so because the superior courts in Queensland and Tasmania made their determinations notwithstanding the dicta of Deane J on which Derham AsJ relied. In his final submissions, counsel for the defendant notes that this issue was not determined by the Court of Appeal.
Prior to the judgment of Derham AsJ, the plaintiff relied on policy arguments related to the remedial nature of family provision legislation. Counsel for the plaintiff also sought to find support for a broad construction of the Act in extrinsic material and in the harsh consequences that could flow from the defendant’s construction of the word ‘stepchild’. The plaintiff sought to distinguish the leading Queensland case, Re Burt,[6] which was followed in the other cases on which the defendant relies, and contends that at least his position is arguable and so summary judgment should not be given.
[6][1988] 1 Qd R 23.
In his further submission after the judgment of Derham AsJ, the plaintiff adopts the distinction that his Honour drew between an end of the marriage between the stepchild’s natural parent and his or her spouse by divorce, as opposed to death. In his final submissions, after the judgment of the Court of Appeal, the plaintiff submits that although the Court of Appeal did not decide the issue that arises on this application, it cited the conclusion reached by Derham AsJ with apparent approval.
Neither party made any submissions directly on In re Bordeaux’ Estate.
Test for summary judgment
The issue of the plaintiff’s eligibility comes before me not as a preliminary question at trial, but on an application for summary judgment. An application for summary judgment for a defendant does not permit or require determination of the plaintiff’s claim or any element of it- only an assessment as to whether or not it is triable, in the relevant sense. The defendant’s application is brought under s 62 and s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’). Prior to that Act, summary judgment was only to be given where a plaintiff’s claim was hopeless, or bound to fail. Section 62 enables a defendant to bring an application for summary judgment on the basis that that the plaintiff’s claim ‘has no real prospect of success’. Section 63 reiterates that this is the test to apply.
There was some initial divergence of authority or uncertainty about the extent to which this test liberalised the earlier test that applied to the grant of summary judgment. The Court of Appeal resolved the question in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[7] The Court by majority (Warren CJ and Nettle JA) held that the test for summary judgment under s 63 of the CPA is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that there may be cases where a plaintiff has no real prospect of success notwithstanding that it cannot be said that the claim is ‘hopeless’ or ‘bound to fail’ as previously required for summary judgment; but that nevertheless ‘the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried’.[8]
[7][2013] VSCA 158.
[8]Ibid (per Warren CJ and Nettle JA) at [35].
Legislative construction
As noted earlier, there is no definition of ‘stepchild’ in the Act. Derham AsJ and the Court of Appeal on appeal from him each considered dictionary meanings of the word ‘stepchild’ and examined the legislative history of the 2014 amendments to the Act which introduced the requirement that an applicant be an ‘eligible person’ within certain categories. They each also considered extrinsic material, including the report of the Victorian Law Reform Commission that preceded the amendments and the Explanatory Memorandum, although the Court of Appeal said that it was not necessary to have regard to any extrinsic materials. Derham AsJ and the Court of Appeal conducted this exercise, however, for the principal, and in the case of the Court of Appeal sole, purpose of ascertaining if the child of a domestic partner of the deceased could be a ‘stepchild’. Thus the analysis is of limited applicability to this application.
In his first submissions, prior to both those judgments, counsel for the plaintiff also sought to find in the second reading speech of the Bill that introduced the amendments support for his reading of the meaning of ‘stepchild’. I caused a Court researcher to conduct a thorough review of all relevant extrinsic materials and invited further submissions on that material. There are indications in the Explanatory Memorandum, in the Second Reading Speeches in the Council and the Assembly, and in the debates that the Bill was intended to, and seen to, reflect modern community expectations, including in relation to step children. These references have been helpfully identified by the plaintiff in counsel’s further submissions dated 29 August 2016. There is, however, no definitive statement as to whether or not a stepchild remains a stepchild within the Act after the death of his or her natural parent, or even any reference to that fact situation. I do not consider that analysis of the legislation, debates and other extrinsic material materially assists in the determination of this issue.
The defendant submits that ‘stepchild’ within the Act should be given its common law meaning, and relies on the Queensland and Tasmanian authorities as to that meaning. I now turn to them, and other relevant authority.
Previous authority
Queensland and Tasmanian cases
The Queensland line of authority commences with Re Burt,[9] a decision of the Full Court of the Queensland Supreme Court in 1986. In that case the applicants for provision from the estate of the testatrix were the children of the testatrix’s second husband. He predeceased her, and she remarried for a third time, that marriage subsisting at her death. There were no natural children of the testatrix and the applicants’ father i.e. they had no half siblings.
[9][1988] 1 Qd R 23.
At first instance, the applicants were successful. The trial judge applied earlier first instance Queensland authority, and held that the relationship of being a stepchild of the testatrix continued notwithstanding the death of the applicants’ father and the testatrix’s remarriage. On appeal to the Full Court, the Full Court overturned this conclusion, holding (by majority- Andrews CJ and McPherson J) that the relationship between a stepchild and a stepparent that comes into being on the marriage of the child’s natural parent and the stepparent:
depends for its continued existence upon the continuity of that marriage and…ceases with the termination of that marriage whether by death or divorce.[10] [emphasis added]
[10]Re Burt, (per Andrews CJ) at 24.
The third member of the Full Court, Thomas J, agreed that on the facts of that case the applicants were not stepchildren, but reached this conclusion because the testatrix had remarried, not because their natural parent had died before the testatrix. He stated that the status of stepchild ‘as ordinarily understood’ does not apply where the natural parent has been divorced from the step-parent but said that it was only ‘probable’ that it did not survive the death of the natural parent and expressly reserved his final view on that question.[11]
[11]Re Burt, (per Thomas J) at 33.
The facts of Re Burt, and the different reasoning applied by Thomas J, permitted agitation of its applicability in different fact situations in a line of subsequent Queensland decisions.
Whether it was the remarriage of the stepparent after the death of the natural parent that ended the stepparent relationship created by the earlier marriage was specifically litigated in Re Oakley.[12] In that case, the trial judge was Thomas J, who was required to revisit his reasoning in Re Burt. In Re Oakley, the natural parent of the applicant stepchild had died before the deceased, but the deceased had not remarried, and the applicant sought to distinguish Re Burt on that basis. Thomas J declined to draw that distinction, however, holding that on the reasoning of the majority in Re Burt the remarriage was not critical, and it was the prior death of the natural parent that ended the stepparent relationship.[13] The applicant failed in Re Oakley on another basis as well, as the estate had been fully administered prior to his application.
[12][1986] 2 Qd R 269.
[13]Ibid at 272.
In Re Taylor[14] Thomas J applied this same reasoning to the converse fact situation- an application by a stepchild whose natural parent had outlived the testator, although that natural parent had died by the time of the application for provision. Thomas J held that as the critical time for determining if the applicant was a stepchild was at the death of the testator, and at that time his marriage to her mother subsisted, the applicant was his stepchild for the purpose of the application. Her application was out of time, however, and failed for that reason.
[14][1989] I Qd R 205.
The question as to whether Re Burt could be distinguished where the stepparent had not remarried after the death of the natural parent (the same question as considered at first instance in Re Oakley) was considered by the Full Court in Re Marstella.[15] The Court held that remarriage was not a critical factor in Re Burt and that on the reasoning of that case the stepparent relationship ended on the prior death of the natural parent, whether or not the stepparent remarried. By majority, Shepherdson J, with whom McPherson J agreed, the Court held that Re Burt could not be distinguished because on the ordinary and natural meaning of ‘stepchild’, the relationship with the stepparent came to an end on the termination of the marriage in question, whether by divorce or death.
[15][1989] 1 Qd R 638.
Macrossan J considered the issue to be one of statutory construction, not the ordinary or common law meaning of ‘stepchild’. He noted that although the legislation had changed, it still defined ‘stepchild’ ultimately by reference to ‘the husband or wife’ of the deceased. He noted that in some usage these words could include a former husband or wife; that there may be a distinction between termination of marriage by divorce as opposed to death; and that there could be unfortunate consequences from the strict application of Re Burt, to which he drew the attention of the Parliamentary draftsman. He concluded, however, that the question should be regarded as settled by authority.
In Re Danes,[16] the applicant stepchild sought to distinguish Re Marstella on the basis that there were children born of the marriage between her mother and her stepfather, and so there was a continuing relationship of consanguinity between her and her half siblings. She failed, but principally because her mother and stepfather had divorced, thus terminating her condition of being a stepchild of that marriage. The trial judge Williams J did note that the marriage also terminated on the death of the natural mother prior to the death of the deceased, and that the applicant was not a stepchild of the deceased for that reason as well, apparently irrespective of the continuing relationship of consanguinity with the half siblings.
[16][1989] 2 Qd R 236.
Re Marstella was challenged but affirmed by the Queensland Court of Appeal in Re Monckton.[17] The applicants were the children of the deceased’s former wife, who while still married to the deceased, predeceased him. The Court noted that the application of Re Burt and Re Marstella could in some instances work injustice and that there was force to the observation by Macrossan J in Re Marstella that in common parlance ‘spouse’ can include former spouse, where the marriage ended by death. The Court held, however, that the competing interpretation, that the condition of being a stepchild comes to an end on the end of the marriage that gives rise to it, for whatever reason, was equally open. For this reason the Court was not compelled to the conclusion that the earlier decisions were wrong, and further, those decisions had been applied in a number of single judge decisions. For these reasons, the Court of Appeal declined to overturn them. Special leave to appeal the decision in Re Monckton was refused by the High Court, Toohey J observing that the interpretation afforded the meaning of stepchild by the Queensland line of authority was ‘reasonably open’.[18]
[17][1996] 2 Qd R 174.
[18]Quoted by the Court of Appeal in Re John [2000] 2 Qd R 322 at 324.
The calls for statutory reform that can be read from the judgment of the Court of Appeal in Re Monckton and the judgment of Macrossan J in Re Marstella were eventually heeded in Queensland. By amendments to the Succession Act1981 (Qld) from 1997, a stepchild is now defined as follows:
40A Meaning of stepchild
(1) A person is a stepchild of a deceased person for this part if—
(a) the person is the child of a spouse of the deceased person; and
(b) a relationship of stepchild and step-parent between the person and the deceased person did not stop under subsection (2).
(2) The relationship of stepchild and step-parent stops on—
(a)the divorce of the deceased person and the stepchild’s parent; or
(b)the termination of the civil partnership between the deceased person and the stepchild’s parent; or
(c) the ending of the de facto relationship between the deceased person and the stepchild’s parent.
(3)To remove any doubt, it is declared that the relationship of stepchild and step-parent does not stop merely because—
(a)the stepchild’s parent died before the deceased person, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died; or
(b)the deceased person remarried, entered into a civil partnership or formed a de facto relationship after the death of the stepchild’s parent, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died.
(4) In this section—
termination, of a civil partnership, means termination under the Civil Partnerships Act 2011, section 14(1)(b) or 19.
In Re John,[19] the Court of Appeal considered the 1997 amendments and held that they were prospective only. The Court also rejected the applicant’s alternative argument that Re Burt, and so Re Marstella and Re Monckton, were wrongly decided, because the view expressed by Deane J in R v Cook and ors: ex parte C and anor[20] (that the condition of being a stepchild survives the death of the natural parent) was correct and the judgment of McPherson J in Re Burt failed to acknowledge that this was taken into account.
[19][2000] 2 Qd R 322.
[20](1985) 156 CLR 249.
The Tasmanian Supreme Court followed the Queensland line of authority in two first instance decisions drawn to my attention- Basterfield v Gay[21] and Connors and ors v Tasmanian Trustees Ltd[22] (‘Connors’). In Basterfield v Gay, the applicant was the natural child of the husband of the deceased, but was not his child by a marriage. Her father died before the deceased. Underwood J held that she was not a stepchild of the deceased as at the deceased’s death for two reasons. The first was by application of Re Burt and Re Marstella, there being nothing to distinguish the statutory definitions of stepchild in the Tasmanian legislation from that in Queensland. The second reason was that the applicant was not the child of a former marriage of her father, but an ex nuptial child.
[21][1994] 3 Tas R 293.
[22][1996] 6 Tas R 267.
In Connors, the applicants sought to distinguish Basterfield v Gay on the basis that they had a half sibling of the marriage of their mother and the deceased i.e. the same basis on which the applicant in Re Danes sought to distinguish the earlier Queensland cases. The trial judge, Zeeman J, held that the question must be determined on the basis of the statutory definition, and not the common law considerations of affinity and consanguinity. The statute defined ‘stepchild’ in relation to a male deceased person as ‘a child of that person’s wife by a former marriage’. The trial judge concluded that ‘that person’s wife’ means the wife as at the deceased’s death, and no different meaning can be attributed depending on whether or not there are or are not half siblings of the applicant by that marriage.
High Court and Victorian authority
The question as to whether or not at common law the condition of being a stepchild ends on the termination of the marriage that created it, and, if so, whether or not anything turns on whether the marriage ends by death as opposed to divorce, has not been directly at issue in any High Court of Victorian authority in relation to family provision located either by the parties, or by my research.
In R v Cook and ors: ex parte C and anor[23] (‘Cook’) the question was the subject of some observation by Deane J in the course of his consideration of the constitutional validity of a provision in the Family Law Act1975 (Cth) that sought to include ex nuptial children of a husband or wife within the umbrella of that Act in certain circumstances. The Court by majority, Deane J dissenting, held that the provision was not valid. In the course of his reasons, Deane J commented on the nature of the relationship between stepparent and stepchild in these terms:
The relationship between step-parent and stepchild is one of affinity as distinct from consanguinity. The basis of the relationship is the marriage of the step-parent with the natural parent. With origins in Judaic and Christian teaching (cf. Leviticus 18.8 and Genesis 2.24), it reflects the traditional common law view that, for some purposes, marriage “rendered the husband and wife as one” (cf. Brotherhood of Locomotive Firemen and Enginemen v. Hogan (1934) 5 Fed.Supp. 598, at p 605 and see, generally, Gottliffe v. Edelston (1930) 2 KB 378, at pp 383-387). Its significance has been recognized in a multitude of legislative provisions…
The nature of the relationship between step-parent and stepchild has been considered in numerous cases in common law jurisdictions. The relationship has been correctly described as a “quasi parental” one (see, e.g., Rex v. Frith, at p 660). It arises regardless of whether the child was an ex-nuptial child or was the child of a previous marriage (see Lineham v. Lineham; Rex v. Frith). The direct connexion between the relationship of step-parent and stepchild and the marriage from which it arises has often been stressed. Thus, it has been recognized that the relationship will only arise if the marriage of parent and putative step-parent was a valid one (see Wilkinson v. Joughin (1866) LR 2 EqCas. 319, at p 322) and it has been held that the relationship will only persist while the marriage, by reason of which it arises, remains undissolved (Mander v. O'Toole, at pp 912-913), at least if there are no children born of the marriage (cf. 2A Corpus Juris Secundum, p 514). If the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between step-parent and stepchild will continue (see, e.g., McGaughey v. Grand Lodge A.O.U.W. of State of Minnesota (1921) 180 NW 1001; Brotherhood of Locomotive Firemen and Enginemen v. Hogan, at pp 603-604). It has been said that the word "stepchild" should, in a particular statutory context, be interpreted as “referring to the acquisition of a new relationship by a child when its parent remarries” and “that the child acquires this new relationship towards the person the parent remarries” (see per Lord Sorn, Commissioners of Inland Revenue v. A.B. Russell (1955) 36 TC 83, at p 86).[24] [emphasis added]
[23](1985) 156 CLR 249.
[24](1985) 156 CLR 249; [1985] HCA 47 per Deane J at [6]-[7].
It can be seen that in these observations Deane J stated that while the relationship persists only where the marriage ‘remains undissolved’, quoting Mander v O’Toole, a New Zealand case, he also states ‘if the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between step-parent and stepchild will continue’, citing in support of that proposition two insurance cases from the United States, McGaughey and Hogan. These observations lend support to the plaintiff’s contention that it is at least arguable that he remained a stepchild of Olga, notwithstanding the earlier death of his father Edmund, because Edmund and Olga were still married as at Edmund’s death.
In Popple v Rowe and ors,[25] the Victorian Court of Appeal held that under the testator’s family maintenance provisions then applying in Victoria the word ‘children’ did not include stepchildren. All members of the Court held that if stepchildren were to be included in the class of persons who could make application for family provision then the legislation needed to specifically include them, as has now been done. The Court adverted to the question as to whether the condition of being a stepchild persists after the death of the natural parent, but was not called to decide it and did not. Brooking JA identified the issue and some authority relating to it in these terms:
The question has from time to time arisen whether the relationship of stepparent and stepchild survives the dissolution of the marriage between the natural parent and the stepparent; see, for example, R v Cook: Ex parte C (1985) 156 CLR 249 at 263 per Deane J; Basterfield v Gay (1994) 3 Tas R 293 and contrast Re Estate of Bordeaux 225 P.2d 433 (1950).[26]
[25][1998] 1 VR 651.
[26]Popple v Rowe at 654.
Brooking JA proceeded to assume for the purposes of the appeal before him that the applicants for family provision remained stepchildren notwithstanding that their natural mother had died before the testator to whom she was at the time of her death married.
In Bail v Scott-Mackenzie, Derham AsJ considered the United States decision to which Brooking JA referred, In Re Bordeaux’ Estate[27] (‘Bordeaux’). It is a decision of the full Supreme Court of Washington State, sitting on appeal in a case relating to the inheritance tax to be applied to stepchildren taking under a will. The taxation legislation gave children, including stepchildren, more favourable treatment than other beneficiaries. Bordeaux undertakes a detailed and apparently exhaustive analysis of United States decisions arising in various contexts, under legislation and at common law, on the question as to whether the tie of affinity created by the marriage between a child’s parent and another is broken on the death of the natural parent and concludes that:
…isolated statements in the legal encyclopaedias to the contrary notwithstanding, there is no such absolute principle, and there never has been, either in the English common law, which continued the tie for the purposes of forbidding marriage between a man and his affinity relatives, or in the American common law, which has continued it for the purposes of holding beneficiaries under insurance policies and workmen’s compensation laws competent to take as relatives.[28]
[27]37 Wash. 2d 561 (1950)
[28]Ibid at 591.
Derham AsJ noted the Queensland and Tasmanian line of authority but considered that the ‘better view is that advanced by Deane J (in Cook) and confirmed by the analysis in Bordeaux. He concluded that:
if the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between stepparent and stepchild will continue.[29]
[29][2016] VSC 563 at [107].
As noted earlier, this aspect of his decision was not pursued on appeal to the Court of Appeal.
Discussion
At face value, the line of decisions from Queensland and Tasmania, and the absence of binding authority to the contrary in Victoria, would seem to lend considerable weight to the defendant’s contention that the plaintiff cannot show that he was a stepchild of Olga after his father’s death. Notwithstanding the apparent force of these decisions, however, I consider that it is arguable, in the sense of not being fanciful, that they were either wrongly decided or inapplicable. My reasons follow.
Particular statutory context
The Queensland and Tasmanian decisions must be read in the context of the statutory definition of ‘stepchild’ that applied in Queensland and, apparently also in Tasmania. A ‘child’ was permitted by the eligibility provision, s 90 of the Succession Act 1867 (Qld), to make application for further provision from an estate, and ‘child’ was defined to include a ‘stepchild’ of a person. ‘Stepchild’ was in turn defined in this way:
‘Stepchild’- in relation to any person, a child by a former marriage of that person’s husband or wife
The later Queensland cases note that there were changes made to this definition over time, but that the stipulation that the ‘stepchild’ be a child of the deceased’s ‘husband or wife’ or ‘spouse’ remained. The changes were not regarded as relevant to the question as to whether the relationship persisted after the death of the natural parent or termination of the marriage that created it by divorce. The determining factor was regarded as being the reference to the ‘husband or wife’ or ‘spouse’ of the deceased, read as being the husband, wife or spouse living at the time of the deceased’s death. It was noted, for example in Re Burt, that the specific provision made for the eligibility of a former wife in certain limited circumstances supports interpretation of the words ‘husband’ and ‘wife’ (and later ‘spouse’) as referring to persons who remained in those categories as at the death of the deceased, because otherwise specific provision for a former wife would not have been necessary.[30]
[30]Re Burt, (per McPherson J) at 26.
In the Victorian Act, by contrast, there is no definition of ‘stepchild’. True it is that paragraph (e) of the definition of ‘eligible person’ in s 90 confers specific, and limited, eligibility for a ‘former spouse or former domestic partner of the deceased’ and so the reasoning applied in the Queensland cases in this regard may be said to apply. There are also, however, contrary arguments that can be put as to the legislative intention.
In his initial submissions counsel for the plaintiff discusses cases under the pre-2014 amendments to the Act, where stepchildren succeeded in an application for family provision even where their natural parent had predeceased the testator or testatrix. He submits that had the legislature on limiting eligibility to classes of persons in the 2014 amendments wanted to exclude a stepchild applicant whose natural parent had predeceased his or her spouse, it could have done so, but did not.[31] Further, as the plaintiff further submits, it would be curious if a person who was in fact and law a stepchild were to be excluded from eligibility, because his or her natural parent had died before the testator, while a person who had been treated as a child by the deceased could remain eligible under paragraphs (d) and (g) of the definition of ‘eligible person’, even if not so treated as at the date of death of the deceased.[32]
[31]Plaintiff’s Outline of Submissions dated 18 August 2016 at [15].
[32]Ibid at [20]-[21], and [26(e)].
Above all, caution must be taken in seeking to apply a meaning drawn from a statute in another state, with a statutory definition, to an undefined term in our Act. The Court of Appeal in Scott-Mackenzie v Bail, on appeal from Derham AsJ, noted (references omitted):
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. It was not fixed for all time by decisions in previous cases that were concerned with its meaning in different statutes and contexts.[33]
[33][2017] VSCA 108 at [46].
For this reason, I would be reluctant to conclude that the plaintiff has no real prospect of success in contending in the modern context of the current Victorian statute that he remained a stepchild of Olga, despite his father predeceasing her. I think there is considerable force to the plaintiff’s contentions[34] that injustice could be occasioned if a rigid view was taken that eligibility as a stepchild ceased on the death of the natural parent, irrespective of the particular family circumstances. Putting it in the positive, there are good policy reasons for allowing a claim by a stepchild whose natural parent predeceases the stepparent, the amount if any of the award to be determined by the facts of the particular case.[35]
[34]Set out in his initial submissions dated 18 August 2016.
[35]See, in particular, the comments by Nettle J in McKenzie v Topp [2014] VSC 90 at [56]-[60], relied upon by the plaintiff in his first written submissions at [17]-[19].
Further, there is also force to the distinction drawn in some of the discussion in the Queensland cases, and also in the US cases, between the consequences of termination of the marriage between natural parent and stepparent by death, as opposed to divorce. Ending the marriage by a deliberate act can easily be seen as more likely to end in fact, and so more justifiably end in law, the relationship between the child of the natural parent and the divorced partner than the death of the natural parent while the marriage subsists. Indeed, where the stepchild is an infant at that death, it is easy to envisage that the relationship of stepchild to stepparent would continue in fact, and so should continue in law.
Consideration of common law and US authority
An equally compelling reason for my conclusion that summary judgment should be refused is that, if the detailed analysis undertaken in Bordeaux is correct, then the reliance by McPherson J in Re Burt on the US line of authority as to the common law meaning of ‘stepchild’ was flawed. It can also be persuasively argued that his conclusions failed to acknowledge the observations of Deane J in Cook to the effect that the relationship of stepchild and stepparent continued notwithstanding the death of the natural parent. I noted earlier that this argument was put to the Queensland Court of Appeal in Re John without success, but a Victorian trial or appeal court may not be so constrained in the reconsideration of the earlier Queensland authorities.
In Re Burt, McPherson J relied on two principal authorities as to the meaning of ‘stepchild’ at common law. One was Mander v O’Toole,[36] a New Zealand case at first instance from 1948. The other was Brotherhood of Locomotive Firemen and Enginemen v Hogan[37](‘Hogan’). Both McPherson and Thomas JJ in Re Burt cite this case as support for the proposition that the death of the natural parent terminates the relationship by affinity with the spouse [38], McPherson J generalising this to be the position of the ‘United States authorities’.[39] Thomas J appeared more cautious, stating elsewhere in his judgment that the United States cases only establish with certainty that the relationship is terminated by the divorce of the natural parent and the stepparent, and that it is ‘less clear’ whether it terminates on the death of the natural parent when the marriage subsisted until that point (as it did here).[40]
[36][1948] NZLR 909.
[37](1934) 5 Fed. Supp. 598
[38]Re Burt, McPherson J at 26-27 and Thomas J at 32.
[39]At 27.
[40]Thomas J at 32.
Hogan is considered at length in Bordeaux, in the context of an apparently exhaustive consideration of relevant US authorities. The full Supreme Court of Washington State on appeal in Bordeaux held that the conclusion of Hogan, that each of the death of the natural parent or divorce between the natural parent and the stepparent terminates the tie of affinity between the children of the natural parent and the stepparent, did not accord with the general line of authority, and should be read down to its particular facts.[41] The marriage in question in Hogan had terminated in divorce, many years before the question of the applicants’ possible eligibility as stepchildren under an insurance policy of which their mother had been beneficiary arose. Their mother had remarried after her divorce from their then stepparent, and also died before the death of her earlier husband, the putative stepparent.
[41]Bordeaux, at 585 and 587.
In relying on Hogan on the basis that it represented the general view in the United States, it would appear then that McPherson and Thomas JJ in Re Burt were in error. Bordeaux stands for the principle that at common law, either in the United Kingdom or in the United States, there was no general principle that the tie of affinity was severed by death. In certain contexts, such as the selection of jurors, it was so terminated, but in other contexts, such as who could marry, it was not.[42] In statutory contexts, the analysis in Bordeaux is to the effect that where a tie of affinity that survives the death of the natural parent would afford benefit on the putative stepchild, such as in relation to inheritance tax or entitlement under an insurance policy, the majority view in the United States cases is that death does not sever the relationship. A similar analysis could arguably apply to family provision.
[42]Bordeaux, at 568.
It is plain from the line of authority in Queensland and also in Tasmania that the assessment of Hogan by McPherson and Thomas JJ has been assumed to be correct. It is Re Burt, including this apparently flawed analysis of the common law position, that has influenced all subsequent decisions in those states. It is striking, for example, that in Basterfield v Gay Underwood J applied Re Burt, notwithstanding that he noted the apparently inconsistent observations of Deane J in Cook, and that his own analysis of cases from the United States showed that Hogan was not necessarily authoritative. Underwood J observed that in Hogan the marriage in question had ended by divorce, and that there were other United States decisions, considered in Hogan, where the death of the natural parent was held not to terminate the stepparent relationship. He further noted that the view expressed in Hogan that there is no reason to distinguish termination of the marriage by which a child became a stepchild by divorce and termination by death was obiter. His conclusion that Re Burt should nevertheless be followed may perhaps be explained by his view that the legislation in the two states was indistinguishable.
Potential relevance of a half sibling
The third reason why I do not consider that Re Burt requires summary judgment for the defendant in this case is that in that case there were no children of the marriage between the applicants’ natural parent and the deceased and so no half siblings of the applicants. In this case, by contrast, the plaintiff and defendant, who is the child of Edmund’s second marriage, are half siblings. Re Burt and Deane J in Cook recognise that at common law the relationship of affinity may continue notwithstanding the termination of the marriage that gives rise to it if there was a child born of that marriage because of the relationship of consanguinity between that child and the stepchild.[43] Indeed, whether or not the relationship would end in this situation was left open in Re Burt.[44]
[43]Re Burt, per McPherson J at 27 and Cook per Deane J at 263.
[44]Per Andrews CJ at 23.
The only case drawn to my attention in which a court has subsequently held that the existence of a half sibling cannot extend the stepchild/stepparent relationship is Re Danes, discussed earlier. In that case, however, the natural parent and putative stepparent had also divorced, and that was held to be the principal disqualifying factor.
Conclusion
For these reasons I do not consider that the defendant has shown that the plaintiff has no real prospect of success in establishing his eligibility as a stepchild. I will refuse summary judgment for the defendant.
Orders
I will ask the parties to draw orders to reflect these reasons. Those orders should include the question of the costs of the application and consequential directions in this proceeding and the related proceedings. If the parties cannot agree on the question of costs, or consequential directions, I will hear them further.
4
0