Child of de facto spouse = Step-child in FPA; Decision upheld on Appeal (VIC)

In September last year, I wrote of case in Victoria where a child of the de facto partner of a deceased person made a claim on the estate by claiming they were a step-child” within the meaning of the legislation. For background, you can read that article here.

Yesterday, the Victorian Court of Appeal published their reasons of the appeal by the Ecexutor of the estate that the first decision was wrong at law and that a child of a de facto spouse was not a step-child.

The Court of Appeal dismissed the appeal and upheld the decision of the Supreme Court in the first instance.

Of the domestic partnership and the word “step-child“, the Court, at para 47, reasoned that:

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.

Of Parliament’s construction of the legislation defining “step-child”, the Court further commented, at para 50, that:

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]

You can read the case here.

Leave a Reply