McKew v Vivian[2023] QDC 146

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   John Wallace died on 22 January 2020. He and Jacqueline Paxton (“the deceased”) had been in a de facto relationship for about the previous 30 years.
2. [2]
   The deceased died on 7 March 2022, just over two years after John Wallace’s death. She left a will dated 1 August 2013. In it, provision was made for her sole biological son and her four stepchildren from a marriage prior to her de facto relationship with John Wallace.
3. [3]
   The applicant and her two brothers, Scott Wallace and Richard Wallace, were the biological children of John Wallace. No provision was made for any of them in the deceased’s will.

4. [4]
   Ms McKew commenced proceedings by way of originating application seeking adequate provision from the deceased’s estate pursuant to s 41 of the Succession Act 1981 (“the Act”). Correspondence between legal representatives prior to the commencement of those proceedings made it clear that her brothers, Scott and Richard, also sought adequate provision. The respondents understood the application had also been brought on their behalf^[1] and, upon each of them filing a Notice of Address for Service, they have been taken to be joint applicants with the named applicant.
5. [5]
   The respondents, as executors of the deceased’s estate, now apply for summary dismissal of those proceedings relying on rule 658 of the UCPR, and costs. The essence of their submissions is that the applicants are not in fact stepchildren of the deceased, as that term is currently defined in the Act, and hence do not have standing under s 41 of the Act.
6. [6]
   For ease of expression, I will refer to the parties by the titles they assumed in the substantive proceedings.
7. [7]
   The resolution of the present application turns on issues of statutory construction. The parties inform me there are no decided cases on point, and I have not independently located any. The statutory schemes in the other States are so different as to provide no assistance on the crucial issue in the application.^[2]

Legislative framework

8. [8]
   The primary application is brought under s 41(1) of the Act. It provides:

“41Estate of deceased person liable for maintenance

1. (1)
   If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.”

9. [9]
   It is common ground that none of the respondents were the spouse or the dependent of the deceased. To succeed, they must show they were the deceased’s children, as defined.

10. [10]
    “Child” is defined at s 40 of the Act and includes a stepchild. That latter term is in turn currently defined at s 40A of the Act as:

“40AMeaning of stepchild

1. A person is a stepchild of a deceased person for this part if—

1. the person is the child of a spouse of the deceased person; and
2. 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—

1. the divorce of the deceased person and the stepchild’s parent; or
2. the termination of the civil partnership between the deceased person and the stepchild’s parent; or
3. 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—

1. 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
2. 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. ...”

11. [11]
    There is no suggestion that the deceased remarried, entered into a civil partnership or formed a de facto relationship after John Wallace’s death. Further, the concept of a civil partnership has no application on the facts of the present matter.
12. [12]
    The term “spouse of the deceased” appears in that definition. The terms “spouse” and “spouse of a deceased person” are defined separately in s 5AA of the Act, so far as is relevant, as:

“5AA Who is a person’s spouse

1. Generally, a person’s spouse is the person’s—

1. husband or wife; or
2. de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA; or
3. civil partner, as defined in the AIA, schedule 1.

2. However, a person is a spouse of a deceased person only if, on the deceased’s death—

1. the person was the deceased’s husband or wife; or
2. the following applied to the person—

1. the person was the deceased’s de facto partner, as defined in the AIA, section 32DA;
2. the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased’s death; or

(ba) the person was the deceased’s civil partner; or

3. for part 4, the person was—

1. a person mentioned in paragraph (a), (b) or (ba); or
2. the deceased’s dependant former husband or wife or civil partner.

3. Subsection (2) applies—

1. despite the AIA, section 32DA(6) and schedule 1, definition spouse; and
2. whether the deceased died testate or intestate.

4. …”

13. [13]
    In turn, s 32DA of the Acts Interpretation Act 1954 relevantly provides:

“32DA Meaning of de facto partner

1. In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.”

The respondents’ submissions

14. [14]
    The respondents’ submissions can be distilled into the following propositions:

1. It is accepted for the purposes of this present application that John Wallace and the deceased were in a de facto relationship at the time John Wallace died, but it is not accepted they were so associated at the time the deceased died.^[3]
2. For the applicants to have standing under s 41 of the Act, John Wallace must have been the deceased’s spouse at the time of her death. The issue turns on the statutory definition of “spouse” and “spouse of the deceased” and, for present purposes, requires that he and the deceased had lived together as a couple on a genuine domestic basis for a continuous period of at least two years prior to the date of the deceased’s death.
3. It is axiomatic that a de facto relationship cannot survive the death of one of the parties to a de facto relationship. Given that John Wallace died more than two years prior to the deceased, John Wallace was not the deceased’s spouse at the time of her death and the respondents do not have standing to bring the substantive application.
4. Section 40A(3) of the Act does not assist the present respondents. That provision attempts to clarify when the relationship between stepchild and step-parent does not stop. It does not, and cannot, make a person a stepchild if they do not otherwise meet the definition in the legislation. Accordingly, if an applicant is not a child of a spouse of the deceased at the time of the deceased’s death, then the subsequent provisions of s 40A do not apply. That necessarily requires that the de facto relationship be on foot at the time of the deceased’s death, for it to continue.
5. If the Court finds that a de facto relationship existed between John Wallace and the deceased at the time the deceased died, the respondents’ application cannot succeed.^[4]

The applicants’ submissions

15. [15]
    The applicants, in essence, submit:

1. There is no inconsistency between ss 5AA and 40A of the Act.

2. The effect of the respondents’ submissions is to exclude stepchildren by a de facto relationship from being children for the purposes of a family provision application under the Act. This is contrary to the intention of the legislature and any tension between s 5AA(2)(b)(ii) and s 40A(3) should be resolved by giving the latter provision primacy.
3. Such an outcome is not only consistent with the legislative intent, but also with common law considerations of who is a stepchild,^[5] and is consistent with the outcomes in Yuille v Gorring^[6] and Freeman v Jaques.^[7]

Consideration

16. [16]
    I accept the parties’ position that the resolution of the present application turns on the application and interpretation of the earlier recited legislative provisions, and particularly the interaction of ss 5AA and 40A of the Act.
17. [17]
    In order for the applicants to have standing to apply for adequate provision, they must be shown to be the children of the deceased, which includes the deceased’s stepchildren, as defined at the time she died. However, the respondents’ submission that in turn requires satisfaction that the de facto relationship was on foot at the time of the deceased’s death cannot be accepted for the reasons that follow.
18. [18]
    Further, it is implicit in the respondents’ submissions that there is an inconsistency between s 5AA and s 40A which must be resolved in favour of what the respondents contend is the meaning of ss 40A(1) and (2). As will be seen, s 5AA and s 40A deal with related but not identical issues and the meaning contended for either does not arise or is not to be preferred in the present factual circumstances.
19. [19]
    Differing views as to the standing of stepchildren of de facto partners of the deceased for the purposes of family provision applications are expressed in the textbooks on the topic. Some consider the position to be unclear,^[8] while others suggest the legislative provisions give the applicants standing.^[9]
20. [20]
    As earlier noted, the issue is one of statutory construction. In undertaking the so- called modern approach to statutory construction, the authorities make it clear that consideration must be given to the text used in the statute, the context in which it is used and the purpose of the legislation. Any amendments to the legislation may bear on that exercise. It may be that, by adopting these criteria, the words of the statute may bear a different meaning to what may otherwise appear to be their apparent express meaning.^[10]
21. [21]
    In this case, some of the legislative history will assist in understanding the construction of the provisions. Section 40A of the Act was inserted by the Justice and Other Legislation (Miscellaneous Provisions) Act 1997.^[11] As originally enacted, it recognised a stepchild only if the stepchild was the child of one of a now married couple. At that time the status of de facto relationships was not expressly recognised under the Act, and there was a complicated body of jurisprudence concerned with whether any provision claims could be made, and by what means they could be made by a child of a person in a de facto relationship with the deceased (“a de facto stepchild”).

22. [22]
    Although that recognition (partly) occurred through the insertion of s 5AA into the Act, that was not until 1 April 2003,^[12] and the position of de facto stepchildren in a family provision application remained complicated. The same Act that inserted s 5AA into the Act also inserted s 32DA into the Acts Interpretation Act 1954. Subsequent amendments to s 5AA have incorporated what are now known as civil partnerships, and they too are recognised in the current form of s 40A.
23. [23]
    Section 40A was not amended to expressly cater for de facto stepchildren being recognised as children of the deceased until the amendment of s 40A by s 247 of the Court and Civil Legislation Amendment Act 2017.^[13]
24. [24]
    The explanatory notes for the Second Reading of the 2017 Bill state:

“Clause 247 amends section 40A to clarify when a step-relationship ends (for family provision applications) where the deceased and the stepchild’s parent have been in a spousal relationship, other than through marriage.”

25. [25]
    It is therefore clear that the legislature contemplated that, for the purposes of a family provision application, the relationship of de facto stepchild and step-parent may come to an end but, not merely (or only) because of the occurrence of events listed in s 40A(3) of the Act. In the context of the factual basis before me, something other than John Wallace’s death first in time is required, provided the de facto relationship subsisted at that time.
26. [26]
    Prior to the enactment of s 40A in its original form, the Full Court had held that the relationship of stepchild and step-parent terminated on the termination of the marriage that created the relationship, whether by death or divorce.^[14] Section 40A, in its original form, overruled that decision so far as it applied to the stepchild’s parent dying before the step-parent, although the provision was not applied retrospectively.^[15]
27. [27]
    It is clear that s 40A, in its current form and in light of its historical context, intends to place all stepchildren, whether the relationship is created by marriage, a civil partnership or a de facto relationship on the same footing for the purposes of a family provision application. As a consequence, it puts a stepchild, as defined, on the same footing as a natural child of the deceased, provided the relationship between the parent and step-parent did not stop merely (or only) because of the events listed at s 40A(3) of the Act.

28. [28]
    The text itself supports the above conclusion. S 40A(1) defines who is a “a stepchild of a deceased person for this part”. The reference to “this part” refers to Part 4 of the Act which deals with family provision applications, and it can be accepted that the reference to “a deceased” and the many refences following it to “the deceased” are refences to the deceased whose estate is the subject of the family provision application brought under Part 4. But that does not divert the focus of the provision away from the relationship between the stepchild and the deceased person to focus on the relationship between the stepchild’s parent and the deceased at the time of the latter’s death. In each instance, when s 40A applies, the relationship between stepchild and step-parent continues after the death of the parent, even though the relationship between the parent and step-parent has terminated; but only if that relationship has terminated merely (or only) because of the occurrence of the events in s 40A of the Act. In this case that is the death of John Wallace, the parent of the stepchild.
29. [29]
    When the caveat in s 40A(3) applies, the effect is to create the same rights as to standing in a family provision application as if the step-parent had died before the parent of the stepchild.
30. [30]
    As earlier noted, the respondents have conceded, for the purposes of the present application, that John Wallace and the deceased were in a de facto relationship at the time of his death. That is, that they were spouses at that time. The applicants were therefore the deceased’s stepchildren at that time. The respondents rely heavily on ss 40A(1)(b) and 40A(2)(c), contending that the de facto relationship stopped on John Wallace’s death. That is undoubtedly true, as it also would be if John Wallace and the deceased had married. But the caveat in s 40A(3) applies to keep the relationship as between stepchild and step-parent on foot even though the de facto relationship that was the foundation for that step-relationship has been terminated through death, just as it would had the two married.^[16]
31. [31]
    The respondents’ reliance on the temporal requirement in s 5AA(2)(b)(ii) is, with respect, misplaced. That is a requirement to establish the foundational de facto relationship, but that foundational relationship was conceded here to have existed at the time of John Wallace’s death. Once the foundational relationship is proven at the time of the parent’s death, the temporal requirement cannot affect the relationship which is deemed to continue under s 40A as between the de facto stepchild and the step-parent.
32. [32]
    Further, the respondents conceded in oral submissions that, on their argument, S 40A would have no work to do in relation to de facto stepchildren.^[17] If there is in fact tension between ss 5AA and 40A of the Act, that is an undesirable outcome and is not justified by a slavish adherence to one possible interpretation of the precise words used in the absence of a consideration of other relevant considerations, especially where another interpretation - the one I prefer - is reasonably open and takes into account matters such as context and the purpose of the provision.

33. [33]
    On the material before me, each applicant was a stepchild of the deceased at the time of John Wallace’s death. His and the deceased’s de facto relationship merely (or only) terminated due to his death. By the operation of s 40A(3), the relationship of stepchild and step-parent did not stop at that time, and subsisted to the date of the deceased’s death. Each applicant therefore has standing to apply for adequate provision from the deceased’s estate. The respondents’ application for summary dismissal must be dismissed.
34. [34]
    I have reached my conclusion without any reliance on the authorities cited by the applicants and recited at paragraph [15] herein. Factual differences between each of them and the present matter meant that they provided no real assistance in the resolution of the issue before me.
35. [35]
    Further orders are required for the case management of these proceedings. The parties will be given the opportunity to reach an agreement as to the terms of those orders.

Costs

36. [36]
    I will hear the parties as to costs.