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Supreme Court of Tasmania |
COURT
IN THE SUPREME COURT OF TASMANIACATCHWORDS
Testator's family maintenance - Jurisdiction - Persons in whose favour order may be made - Children - Step-child - Where natural parent predeceased testator - Not a step-child within meaning
Testator's Family Maintenance Act
1912 
, s2(1). Testator's Family Maintenance Act 1912 , ss2(1) and 3 . Re Burt
(1988) Qd R 23; Re Marstella (1989) 1 Qd R 638; Mander v Toole (1948) NZLR
909, applied. Statutes - Interpretation - Rules of construction - Words to be
given literal and grammatical meaning - Step-child - A
child of the deceased
person's spouse by a former marriage. Testator's Family Maintenance Act 1912 ,
s2(1).
Statutes - Interpretation - Rules of construction - Words to be given literal and grammatical meaning - Step-child - A child of the deceased person's spouse by a former marriage - Not affected by the Status of Children Act, s3(1). Status of Children Act, s3(1).
HEARING
HOBART, 28 July 1994
Counsel for applicant: T J Williams
Solicitors for applicant: Gunson Pickard and Hann
Counsel for respondents: B Baker
Solicitors for respondents: Murdoch Clarke Cosgrove and Drake
ORDER
Special case answered in the negative.DECISION
UNDERWOOD J Pursuant to the Testator's Family Maintenance Act 1912 , s3(1) the
applicant commenced proceedings for an order that provision be made for her
out of the estate of the late Shirley Anne Silcock.
In that cause a special
case has been stated in accordance with the Rules of Court, O36.
2. The Testator's Family Maintenance Act 1912 , s3A provides that (inter alia)
children of the deceased are entitled to apply for an order pursuant to s3(1).
The Act, s2(1) defines child to include step-child, and the same subsection
relevantly defines step-child to mean:
"In relation to a female deceased person, a child of
that person's husband by a former marriage."3. The issue for determination on the special case is whether, at the date of the death of the deceased, the applicant was a step-child because:
1 her parents had never married; and4. These are the agreed facts of the special case.
2 her father died eight years before the testatrix.
"1 The Applicant was born on the 9th day of April 1955.5. A step-child's entitlement to an order pursuant to s3(1) has been recognised in this State. See for example, In re Lockwood (1960) Tas SR 46; Hinchen v The Public Trustee Neasey J 62/1978; Hoggett v Perpetual Trustees and National Executors of Tasmania Ltd and Anor Wright J 14/1989. In all three cases the step-child/applicant was successful in obtaining an order and, in at least the last two cases, the applicant's natural parent predeceased the step-parent against whose estate the claim was made. However, it appears that the arguments advanced in this case were not put in any of those cases nor, according to the researches of counsel, has the point raised by the special case previously been considered in this State.
The Applicant's parents were Ernest John Silcock and
June Heather Hoskinson. The Applicant's parents never
married.
2 The Applicant's father Ernest John Silcock married
the deceased in 1977.
3 The Applicant's father died in 1985.
4 The deceased died on the 25th day of April 1993."
6. The first question is whether the applicant's relationship of
step-daughter came to an end when her father died in 1985. Counsel
for the
respondent relied upon Re Burt (1988) Qd R 23, a decision by the Full Court of
Queensland. In that case, the relevant statutory definition provided that
step-child meant, "in
relation to any (deceased) person, a child by a former
marriage of that person's husband or wife." The testatrix in that case
married
three times, and although she had a child out of wedlock there were no
children of any of her three marriages. Her second husband
had two children by
a prior marriage. They were the applicants. Their father's marriage to the
testatrix ended with his death.
Andrews CJ who agreed with the reasons for
judgment of the other two members of the court said at 24:
"I am satisfied that the relationship of affinity7. In two earlier Queensland cases, determined at first instance, the court held that the relationship of step-parent and step-child survived the termination of the marriage between the child's natural parent and its step-parent. See Re Trackson (1967) Qd R 124 and Re Nielsen deceased (1968) Qd R 221. In Re Burt (supra) the Full Court held that the two earlier cases had been wrongly decided. McPherson J referred to the definition section which defined step-child as a child by a former marriage of the deceased person's husband or wife and not, as he pointed out, by reference to a child by a former marriage of that person's former husband or former wife. His Honour said that, consistent with other provisions in the Act, the definition was intended to include only those children whose natural parent was still married to the deceased at the time of the deceased's death. However, the foundation of McPherson J's judgment rested on a principle that emerged after an examination of American authority viz, Brotherhood of Locomotive Firemen and Enginemen v Hogan 5 Fed Supp 598 (1934), at 600 and two other cases; Re Cook [1985] HCA 47; (1985) 59 ALJR 669 at 674 and Mander v O'Toole (1948) NZLR 909. His Honour expressed the principle at 27-28:
between step-parent and stepchild which comes into
being with the marriage of the child's natural parent
with the step-parent depends for its continued
existence upon the continuity of that marriage and that
it ceases with the termination of that marriage whether
by death or divorce."
"To my mind, however, both the New Zealand decision and8. Thomas J referred to the same authorities and reached the same conclusion observing however, by way of exception, that if children are born of the marriage then the relationship of affinity may persist because of the relationship of consanguinity between the step-child and the half siblings.
the United States authorities considered in Hogan's
case show that there is an ordinary or natural meaning
of the word 'stepchild', and that the relationship it
connotes is ordinarily regarded as coming to an end
upon termination of the marriage that gave rise to it.
The circumstance that the same result has been reached
in two English-speaking communities separated
geographically but not in origin or outlook is a factor
that influences me to accept that it was in that sense
that the Queensland Parliament probably intended to use
the word in 1943 and again in 1968."
9. It is necessary to examine Hogan's case. It concerned entitlement to the
proceeds of a policy issued by a fraternal beneficiary
society on 1 January
1907. The designated beneficiary on the issue of the policy was the member's
wife, Mrs Kennedy. She had been
married before and had four children by that
prior marriage. There were no children of the marriage between Mr and Mrs
Kennedy.
Two and a half months after the policy was issued, Mr and Mrs
Kennedy were divorced. Mrs Kennedy later remarried. She pre-deceased
Mr
Kennedy. If the children of Mrs Kennedy's first marriage were the
step-children of Mr Kennedy at the date of his death they were
entitled to the
proceeds of the policy. The relevant definition of step- children was:
"'Stepchild' is defined as a child of one wife or10. At 600 Nordby J stated the problem in the following terms. "The question presented to the court ... is whether or not the relationship of step-father and step-children was extinguished by the subsequent decree of divorce which absolutely dissolved the marriage relationship which gave rise to the kinship of affinity." His Honour pointed out that if it did not, then upon Mrs Kennedy's subsequent marriage the children acquired a new step-father and there would then have been two step-fathers living at the same time which, "is indeed an anomalous relationship." His Honour cited, as did the members of the court in Burt's case, 2 Corpus Juris, 379:
husband by a former marriage.
'Step' is defined to be a prefix denoting relationship
through marriage only of a parent, and not by blood."
"Death of the spouse terminates the relationship by11. Nordby J went on to consider seven American authorities, the majority of which involved the construction of statutes dealing with the crime of incest or the qualification of judges or jurors, and in all of which it was held that a relationship by affinity dissolved at the time of the cessation of the marriage which produced it. He cited ten other cases by name only in support of that proposition. Nordby J then turned to examine four cases which he said were the ones principally relied upon by the step-children. The first, Anderson v Royal League (1915) 130 Minn 416, 153 NW 853, LRA 1916B, 901 Ann Cas 1917C, 691, he distinguished at 603 saying, "no consideration was given by the court to the continuance of the relationship of affinity after the dissolution of the marriage, by death or otherwise." The second was McGaughey v Grand Lodge of AOUW of State of Minnesota (1921) 148 Minn 136, 180 NW 1001. This case also concerned the beneficiary of a policy issued by a fraternal society. In it at 1001 (180 NW) Quinn J said:
infinity; if, however, the marriage has resulted in
issue who are still living, the relationship by
affinity continues."
"A stepmother is a relative by affinity, and the12. His Honour did not refer to the issue again and concluded his brief reasons for judgment at 1002:
relationship continues after the death of the father.
Simcoke v Grand Lodge AOUW 84 Iowa 383, 51 NW 8, 15 LRA
114; Anderson v Royal League, 130 Minn 416, 153 NW 853
LRA 1916B 901 Ann Cas 1917C 691."
"It is well settled that the laws and regulations of a13. The other two cases were Simcoke v Grand Lodge AOUW (supra) and Spear v Robinson 29 Me 531. With respect to the latter, Nordby J said in Hogan at 604, "the court used the language quoted in the Simcoke case. It is significant, however, that there is an utter absence of authority to sustain the position of the court in that case." His Honour pointed out that that case was concerned with dissolution by death and not divorce. He then said:
society such as the defendant will, and should be,
construed strictly in favour of the insured, so as to
avoid forfeiture."
"It may be admitted, however, that the McGaughey and14. In Hogan, the issue arose out of dissolution of marriage by divorce and his Honour held that in such circumstances the relationship of affinity ended with the dissolution. He expressed the view, obiter that there appeared to be no "substantial reason" for distinguishing between the dissolution of a marriage by death and dissolution by divorce in a case where the marriage was without issue. He said at 605:
Simcoke Cases hold, in the light of the circumstances
therein disclosed, that the relationship by affinity
was not extinguished by dissolution by death of the
marriage which gave rise to the kinship. But if these
cases are predicated upon authority of Spear v
Robinson, supra, then clearly they are based on a
decision that expresses the minority view."
"The relationship of stepchild and step-parent is15. In Re Cook and Anor, ex parte C and Anor (1985) ALJR 669 Deane J referred to some of the American authorities at 674 and observed, "... it has been held that the relationship will only persist while the marriage by reason of which it arises, remains undissolved." It is interesting that in New Zealand, the High Court reached the same conclusion as did the Full Court in Queensland although not by recourse to the same authority. In Mander v O'Toole (1948) NZLR 909 Finlay J held that dissolution of a marriage by divorce destroyed the relationship of affinity that the marriage created. The issue came before the Full Court of Queensland again in Re Marstella (1989) 1 Qd R 638. The difference between Marstella and Re Burt was that in the latter case the testatrix married again after the death of the applicant's father but in the former the testator did not remarry after the death of the applicant's mother. The court reaffirmed its decision in Re Burt. All the members of the court reaffirmed the principle that dissolution of the marriage by death or divorce destroyed the relationships of affinity that were created by it except perhaps in the case of a marriage that produced issue.
predicated on marriage, as are all other relationships
of affinity. If the relationship of sisters, brothers,
or cousins by affinity is abolished by dissolution of
the marital relationship, the same principle must
necessarily apply to the affinity between step-parent
and stepchild. The entire structure of relationship by
affinity is based on a subsisting marriage, not a
dissolved one. Marriage in the eyes of the common law
rendered the husband and wife as one. It was thought
necessary and desirable therefore, to establish an
affinity between the blood relatives of the respective
spouses and the parties to the union. But where the
union is dissolved, and there are no children of the
marriage, society is not particularly served or
benefited by the continuance of the fiction when the
cause has ceased."
16. On behalf of the respondent it was submitted that there was nothing to
distinguish the case stated from Re Burt and Marstella
and they should be
followed. On behalf of the applicant it was submitted that I should have
regard to the purpose of the Testator's Family Maintenance Act 1912 as
directed by the Acts Interpretation Act 1931, s4(1)(a), which is no doubt, to
make adequate provision for the members of the family of a deceased person in
circumstances where such provision
has not been made and ought to have been
made. It was also submitted that the Act is a remedial enactment and that it
ought to be
construed accordingly. See Pearce and Geddes, Statutory
Interpretation (3 ed) pars9.2-9.4 and cases cited there. Counsel for the
applicant gave several illustrations in which unfairness could be demonstrated
if Re Burt was followed, but it is just as easy to
think of illustrations of
unfairness if it is not followed.
17. There is nothing to distinguish the definition of step-child in the
Tasmanian Act from that considered on two occasions by the
Full Court of
Queensland. The decision in those cases is consistent with principle and in
accordance with the ordinary and literal
meaning of the words used in the
statute. The same principle has been applied, and the same meaning given the
words, in New Zealand
and the United States of America. Step-children may be
entitled to an order that provision be made for them out of the estate of
the
deceased step-parent in four of the six States of Australia and in both
Territories. However, in two jurisdictions there is
no definition of
step-child, in two others entitlement to an order is not dependent on the
relationship of affinity and the remaining
two are Queensland and Tasmania.
"It is highly desirable that there be conformity of decision between States
where legislative provisions
are identical," per Camden Park Estate Pty Ltd v
O'Toole (1969) 72 SR(NSW) 188 at 190. The interpretation applied by the Full
Court of Queensland is one that gives the words their ordinary and natural
meaning
and it should be applied to the definition of step-child as enacted in
the tfma1912297 /" class="autolink_findacts">Testator's Family Maintenance Act 1912, s2(1) , there being nothing in the
Act to indicate a contrary legislative intention.
18. Although it is unnecessary for me to do so, I turn to consider the other
submission raised on this special case viz, whether
the applicant is a
step-child within the meaning of the Act as she is not a child by a former
marriage of the husband of the deceased.
On behalf of the applicant it was
submitted that the statutory qualification that an applicant must be born of a
former marriage
of the deceased's spouse was removed by the Status of Children
Act 1974. The argument put was that the purpose of the Act is to remove legal
disabilities of children born out of wedlock, the requirement
in the
Testator's Family Maintenance Act , s2(1) that a step-child must be a child by
a marriage imposes a disability on an illegitimate child not imposed on a
legitimate child and
therefore since the Status of Children Act, the
requirement of legitimacy has no effect. However, that argument overlooks the
relevant section of the Status of Children Act. Section 3(1) provides:
"For all purposes of the law of the State the19. Prior to the enactment of that provision, there applied a presumption common to the construction of instruments and statutes alike, that in the absence of an intention to the contrary, a reference to a child or children was a reference to a legitimate child or children. With respect to this presumption Viscount Simonds said in Galloway v Galloway (1956) AC 299 at 310:
relationship between every person and his father and
mother shall be determined irrespective of whether
the father and the mother are or have been married to
each other and all other relationships shall be
determined accordingly."
"First, as to the prevailing law. It was in 1857 (as20. See also Sydall v Castings Ltd (1966) 3 WLR 1126. Thus, prior to the enactment of the Status of Children Act, "children" in the
it is today) a cardinal rule applicable to all written
instruments, wills, deeds or Acts of Parliament that
'child' prima facie means lawful child and 'parent'
lawful parent. The common law of England did not
contemplate illegitimacy and, shutting its eyes to the
facts of life, described an illegitimate child as
'filius nullius.' This prima facie meaning may in
certain circumstances be displaced and a wider meaning
given to the words, and it is said that those
circumstances are present if the wider meaning is more
consonant with the policy of the statute in which the
words are found: see per Vaughan Williams L.J. in
Woolwich Union v Fulham Union (1906) 2 KB 240. This is
not, I think, an entirely happy phrase, for it appears
to suggest that the court begins its consideration of
the statute with an impartial mind towards either
meaning. It is, moreover, capable of leading and, I
think, has led the court to find the policy of the Act
in its own predilections of a later age rather than in
the provisions of the Act itself.
A safer approach to the question of construction, and
one that has the authority of this House, is to say
that 'children' means legitimate children unless some
repugnancy or inconsistency and not merely some
violation of a moral obligation or of a probable
intention would result from so interpreting the word:
see, for example, per Lord Selborne in Dorin v Dorin
(1875) LR 7 HL 568, 577."
Testator's Family
Maintenance Act , s3(2) meant legitimate children in the absence of some
"repugnancy or inconsistency" with other provisions in the Act. Section 2(2)
is inconsistent to the limited extent that "child" is defined to include "in
relation to a deceased person who dies unmarried and
without having been
married," a child born out of wedlock. In In the Estate of Turnbull (1975) 2
NSWLR 360 it was held that "children" in the Testator's Family Maintenance and
Guardianship of Infants Act (NSW), s3(1) did not include illegitimate
children
of the testator. Since the Status of Children Act "child" and "children" has
to be construed without reference to whether the parents were ever married.
The Act requires the same
construction to be applied to other relationships
eg, grand children and step-children. As to the latter, see Young v Pearce
Developments
(1981) Tas R 32. However, the Testator's Family Maintenance Act ,
s2(1) , unlike the Worker's Compensation Act 1927, expressly defines
"step-child" to be a child "by a former marriage." The Status of Children
Act, s3(1) does not override an express statutory definition. The Status of
Children Act amended the Testator's Family Maintenance Act by deleting special
requirements of proof in the case of a claim by an illegitimate child of a
deceased person who died unmarried
and had never been married, but made no
change to the definition of step-child. The Status of Children Act, s12 and
Schedule effected numerous statutory amendments and had the intention of
Parliament been that the definition of step-child in
the Testator's Family
Maintenance Act no longer had operation, the Status of Children Act, s12 and
Schedule would have been the obvious place to manifest that intention.
21. Accordingly I have reached the conclusion that the death of the
applicant's father brought to an end the relationship of affinity
that was
created by his marriage to the deceased and that in any event, by reason of
the fact that the applicant is not a child of
a former marriage of her father,
she is not entitled to an order that provision be made for her out of the
estate of the deceased
pursuant to the Testator's Family Maintenance Act , s3.
The special case will be answered accordingly. I will hear counsel before
making any final orders.
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