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[2003] SASC 178
defendant. The preliminary point was answered No; the plaintiffs were not eligible to claim as children of a child of the deceased.
The grandchildren could claim against the estate only if their mother was legally a child of the deceased for the purposes of the family-provision legislation. The evidence did not prove that he was her biological father, the process used to record her overseas birth in South Australia did not meet the statutory recognition provision, and the court would not treat lifetime acknowledgment alone as enough to widen the class of eligible applicants. The preliminary answer was No.
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Nyland J determined a preliminary point in a family-provision claim under the Inheritance (Family Provision) Act 1972 (SA). The plaintiffs, Kym and Sean McGuffie, were the children of Emilia Gabriel. They sought provision from the estate of Stanislaw Joseph Korczynski, claiming as his grandchildren. Their standing depended on whether Emilia Gabriel was a child of the deceased. The court was not deciding whether provision should ultimately be made, or what amount might be appropriate. It was deciding whether the plaintiffs fell within an eligible category at all: [1]-[3], [7].
No linked legislation citations have been extracted yet.
The evidence presented a difficult historical question. Emilia Gabriel was born in Mulheim, Germany, on 31 January 1946. A German birth certificate recorded her mother as Emilia Knapzyk and her father as Wladyslow Knapzyk: [17]. Other German documents referred to Emilia Marie as married to Knapczyk and identified Emilia as her daughter: [18]-[20]. In contrast, a South Australian birth certificate issued in 1958 recorded the deceased as Emilia Gabriel's father, and said that the birth registration had been entered in 1952: [10]. A baptism certificate and later South Australian records also identified the deceased as her father: [11]-[12].
The deceased married Emilia Marie in South Australia in December 1951. The marriage certificate described her as a spinster and gave Jan Knapczyk as her father: [9]. The documentary history was complicated by the movement of displaced persons after the Second World War and by the absence of direct evidence from those involved in the relevant events: [36]-[37].
The deceased treated Emilia Gabriel as his daughter during his lifetime. He named her as his daughter in wills made in 1992 and 1998, and funeral notices and memorial cards did the same: [13]-[15]. But the legal question was not simply whether he regarded her as a daughter. The plaintiffs needed to establish a basis within the statute that made them eligible as her children.
The executors asked for that question to be tried as a preliminary point. The parties relied on documents admitted by consent and called no oral evidence: [3]-[4]. Nyland J answered the question in the negative: [66].
The judgment considered three possible routes to standing. First, the plaintiffs argued that the evidence proved the deceased was Emilia Gabriel's biological father. Second, they relied on statutory recognition of fatherhood through the birth-registration process. Third, they argued that “child” in the Inheritance Act should include someone whom the deceased formally acknowledged or held out as his child: [23]-[27].
On biological paternity, the judge accepted the German birth certificate as evidence. The plaintiffs questioned its provenance and the reliability of record-keeping in post-war Germany. The court found that the certificate appeared on its face to be valid, had been certified by the registrar as a copy of the registry record, and bore what appeared to be an authentic registry stamp. The accompanying letter from the Mayor's office supported its status as an official record: [32]-[35]. The court declined to take judicial notice that German record-keeping during the post-war period was unsatisfactory: [35].
The two birth certificates concerned the same person, as shown by their matching name, birth date and place of birth. But they named different fathers. The German record was chronologically earlier than the South Australian certificate. In the absence of further evidence resolving the conflict, Nyland J considered the probabilities at best equal. The plaintiffs bore the burden of proving that the deceased was more likely than not to be the biological father, and did not discharge it: [36]-[37].
The second route relied on s 7(b) of the Family Relationships Act 1975 (SA). That provision recognises a man as a child's father if he acknowledged in proceedings for registration of the child's birth that he was the father: [40]. The plaintiffs argued that the deceased had participated in the 1952 South Australian birth-registration process. The court accepted that he had participated in the process by which the birth was recorded, but found a critical difference from the circumstances in Re Sinodinos: [47].
Under the Births and Deaths Registration Act 1936 (SA), the relevant registration provisions concerned children born in South Australia, with a provision also addressing children born at sea whose parents ordinarily resided in the State. The legislation contained no provision for registering a foreign birth in South Australia. The Registrar's 2002 letter confirmed the absence of such a statutory provision: [21]-[22], [48]. Nyland J therefore found that the process used to register Emilia Gabriel's birth was invalid and could not be treated as “proceedings for the registration of the birth” under s 7(b): [49]. Re Sinodinos was distinguishable because the registration process considered there operated under legislation that permitted the relevant registration: [42]-[49].
The third argument was that the remedial purpose of family-provision legislation justified a broad meaning of “child”. The judge accepted that the deceased had acknowledged and maintained that Emilia Gabriel was his daughter: [53]. Nevertheless, the court followed the reasoning in Popple v Rowe. As Nyland J understood that decision, the remedial character of the legislation supported a benevolent exercise of jurisdiction for people who were eligible, but did not itself expand the class of people entitled to apply: [60]-[65]. The statutory language, not acknowledgment alone, controlled the standing question.
The judgment describes two relevant strands of earlier authority and applies them to the particular statutory framework before it. Re Sinodinos had considered whether acknowledgment in a birth-registration process could lead to recognition as a father under s 7(b) of the Family Relationships Act. In that case, as recounted by Nyland J, the alleged father signed a notification of birth under legislation that provided for the registration of the birth. Olsson J treated “proceedings” as extending beyond court proceedings to the processes leading to registration under the registration statute: [42]-[45].
Nyland J did not reject that approach. Rather, she distinguished it. The decisive difference was that the 1936 South Australian legislation did not permit the registration of a child born overseas. The deceased's participation could not turn an unauthorised recording process into the statutory proceedings required by s 7(b): [47]-[49]. The judgment therefore illustrates that the operation of the recognition provision depended on the statutory authority for the registration process, not merely on a parent's participation or acknowledgment.
The second strand was Popple v Rowe, a Victorian decision about stepchildren seeking family provision. The judgment recounts that the Full Court rejected an interpretation of “children” that would include stepchildren who were neither children of the deceased nor adopted by him: [56]-[63]. Nyland J applied that reasoning to reject the plaintiffs' proposed extension of “child” to a person held out by the deceased as his child: [64]-[65].
The judgment's own conclusion was that family-provision legislation's remedial purpose did not justify an expansive interpretation of the category of eligible applicants. Its conclusion was limited to the arguments and provisions before it. It does not establish, in this text, how later courts treated McGuffie, or whether subsequent legislation altered the relevant statutory categories.
At [35], the judge said the German certificate appeared to have been kept under public authority and to be recognised as an authentic record. In plain English, the court considered the certificate sufficiently official to admit and assess, rather than disregarding it because it came from Germany or related to the post-war period.
At [37], the judge concluded: “At best the probabilities are equal.” The practical significance is that equally balanced evidence did not satisfy the plaintiffs' burden. The issue was not whether the deceased might have been Emilia Gabriel's biological father. It was whether the evidence made that more likely than not.
At [49], the judge found that the South Australian birth-registration procedure was invalid. In plain English, the fact that a birth had been recorded in a state registry, and that the deceased had participated, did not itself satisfy the statutory recognition provision when the governing Act did not authorise registration of overseas births.
At [65], the judge rejected an expanded meaning of “child” based on acknowledgment and holding out. The court recognised the force of the circumstances but considered statutory eligibility a separate question from the deceased's personal understanding of the relationship.
At [66], the preliminary answer was “No”. This resolved standing only. The judgment does not determine the merits of any assessment of provision because the plaintiffs failed at the threshold question.
The reasoning is most relevant to a family-provision claim where a proposed applicant's standing depends on an intermediate family relationship, such as whether the applicant's deceased parent was a child of the deceased estate-holder. The judgment shows that evidence of social or familial recognition may be insufficient where the statute requires a particular legal relationship: [7], [28]-[29], [53]-[66].
It is also relevant where parentage evidence conflicts. Here, official-looking records from two jurisdictions gave different fathers, and the court assessed their status, chronology, and consistency with the other documents. The plaintiffs' failure to tip the balance meant the biological relationship was not established: [30]-[37]. The judgment does not prescribe a general hierarchy for all conflicting birth records. Its assessment was tied to the evidence in this case.
A further trigger is a claim that a birth-registration process amounts to acknowledgment under a statutory parentage provision. McGuffie highlights the need to examine what the relevant registration legislation authorised at the time and whether the process fell within its terms: [40]-[49]. Participation in a process that was not legally available for the relevant kind of birth did not satisfy s 7(b) on the judge's reasoning.
Finally, the case is relevant where a party relies on a remedial purpose to broaden a statutory class of eligible applicants. The judgment distinguishes generous treatment of an eligible applicant from enlarging the eligibility category itself: [60]-[65]. The deceased's wills and other acts were significant evidence of how he regarded Emilia Gabriel, but they did not establish the plaintiffs' statutory standing.
The supplied judgment does not discuss any later decision treating McGuffie, and no later case history is included in the material provided. It is therefore not possible, on this source alone, to say whether later courts followed, distinguished, limited or reconsidered its reasoning.
The judgment itself discusses earlier authorities. It distinguishes Re Sinodinos because the relevant registration legislation differed: [42]-[49]. It follows the approach in Popple v Rowe concerning the limits of interpreting “child” or “children” broadly in family-provision legislation: [55]-[65]. It also considers Lyell v Kennedy on the evidentiary status of foreign public registers: [32]-[35]. These are the authorities identified and addressed in the judgment; they are not evidence of how courts treated McGuffie after 2003.
For research purposes, the distinction between the judgment's different strands matters. Its conclusion about the foreign certificate concerned evidentiary admissibility and weight. Its conclusion on s 7(b) turned on the limits of the 1936 registration statute. Its conclusion on the expanded meaning of child relied on the statutory eligibility approach discussed through Popple. The text supplied does not establish the subsequent reach of any of these conclusions.
The judgment leaves unresolved the biological question as a historical matter. Nyland J found the evidence insufficient to establish that the deceased was the biological father, not that biological paternity had been disproved: [37]. The two records remained in conflict, and the court had no direct evidence from the people involved in events between 1945 and 1958: [37].
The decision also does not determine how s 7(b) would apply to other kinds of registration process, or to a process authorised under different legislation. Its reasoning concerns the specific absence of authority to register overseas births under the 1936 Act: [47]-[49]. It should not be read from this source alone as resolving every question about acknowledgment in registration proceedings.
Nor does the judgment determine whether another statutory provision could recognise a non-biological parent-child relationship in a different factual or legislative setting. The court addressed the proposed routes under the provisions argued in this case and the meaning of child under the Inheritance Act: [23]-[27], [38]-[50], [51]-[66].
Finally, the judgment did not consider whether provision would have been appropriate if the plaintiffs had established eligibility. The preliminary hearing ended with the answer “No”, so the substantive family-provision merits were not decided: [1], [66].
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1 This is the trial of a preliminary point to be heard and determined with respect to a claim made pursuant to the Inheritance (Family Provision) Act 1972 (the Inheritance Act). The two plaintiffs, Kym Geraldine McGuffie (Kym) and Sean Robert McGuffie (Sean) are the natural children of Emilia Gabriel McGuffie (Emilia Gabriel). The defendants are the executors of the estate of Stanislaw Joseph Korczynski (the deceased) who died on 21 February 2002. The plaintiffs claim as grandchildren of the deceased. They seek an order that provision be made out of his estate for their maintenance, education or advancement in life.
2 In the course of pre-trial proceedings, a question arose as to the locus standi of the plaintiffs to make a claim against the estate as a dispute arose as to whether the deceased was in fact the biological father of their mother, Emilia Gabriel. It is not disputed that Emilia Gabriel's mother was Emilia Marie Korcszynski (Emilia Marie) nor that she was wife of the deceased. The defendants say, however, that Emilia Marie was previously married to a man called Knapczyk and that Emilia Gabriel is a child of the Knapczyk marriage and not of her marriage to the deceased.
3 On 27 September 2002, the defendants filed an application to the court asking that the following question be tried as a preliminary point:
"Whether the plaintiffs or either of them are a child of a child of the above named deceased and therefore entitled to claim a benefit of the Inheritance (Family Provision) Act 1972 in respect of the deceased."
4 On the hearing of the application it was agreed that the plaintiffs would act as dux litis. No oral evidence was given with respect to the application and each of the parties relied on a series of documents which were admitted in evidence by consent.
5 There is no dispute that Kym and Sean are the children of Emilia Gabriel and the grandchildren of Emilia Marie. Emilia Marie died on 11 September 1992. Emilia Gabriel died on 8 February 2000. The deceased died on 21 February 2002.
6 The will of the deceased which is dated 23 October 1998 appointed the defendants Anna Marie Korcszynski and Stan Peter Korcszynski (Anna Marie and Stan Peter) to be the executors and trustees of the estate. Pursuant to para 4 of that will, the beneficiaries of his estate were stated to be "such of his daughters Emilia Gabriel and Anna Marie and his son Stan Peter who should survive him and if more than one in equal shares, each for his or her sole use and benefit absolutely". As Emilia Gabriel died during the lifetime of the deceased the estate currently devolves upon Anna Marie and Stan Peter in equal shares.
7 The question which arises in these proceedings is whether Emilia Gabriel can be determined to be a child of the deceased in order to give her children locus standi to make a claim for their provision out of his estate.
8 The following documents were tendered by the plaintiffs:
9 A marriage certificate issued by the Registrar of Births Deaths and Marriages at Adelaide records a marriage on 29 December 1951 between the deceased, aged 28, of 41 John Street, Hindmarsh and Emilia Knapczyk, aged 26, also of 41 John Street, Hindmarsh. The deceased is described as a bachelor born in Piezonogi, Poland. The bride is described as a spinster born in Krakow, Poland. The bride's father is stated to be Jan Knapczyk. (emphasis added)
10 A certificate was issued by the Registrar of Births Deaths and Marriages at Adelaide on 2 July 1958 recording the birth of Emilia [Gabriel]. The date and place of birth are stated to be 31 January 1946 at Mulheim, Germany. Emilia's father is recorded as being Stanislaw Korcszynski, age 22, born in Peczonogi, Poland. His address is given as 41 John Street, Hindmarsh and he is listed as being the informant. Emilia's mother is stated to be Emilia Korcszynski, formerly Knapczyk, aged 20 years, born in Krakow, Poland. The registration was entered on 18 January 1952.
11 A Baptism certificate of "Emilia Knuperyk Korcszynski" is dated 18 June 1953. Her parents are stated to be Stanislaw Korcszynski and "Emillia nee Knaperyk". It states that her date of birth is 31 January 1946.
12 Emilia Gabriel's death certificate was recorded at the office of Births Deaths and Marriages in Adelaide on 17 February 2000. It lists her father as the deceased and gives her mother's maiden name as "Knapczyk, Emilia Maria". Emilia Gabriel's date of death is stated to be 8 February 2000.
13 On 30 April 1992, the deceased made a will (not being the will admitted to probate) in which he appointed his daughter Emilia Gabriel to be the executor and trustee of his will if his wife failed to survive him or was unable or unwilling to perform those roles. (emphasis added)
14 This is the will admitted to probate in which the defendants were appointed executors. The will includes a provision inter alia for his daughter Emilia Gabriel to benefit if she survived him.
15 The memorial card and funeral notices with respect to the deceased refer to Emilia Gabriel as his daughter and Kym and Sean as his grandchildren. The funeral notices and memorial cards for Emilia Gabriel also describe the deceased as her father.
16 The following documents were produced by the defendants:
17 A birth certificate issued in Germany on 6 February 1946 states that a girl named "Emilja" was born in Mulheim, Germany on 31 January 1946. Her mother is recorded as being "Emilja Knapzyk nee Kolodon ... wife of the locksmith Wladylaw Knapzyk".
Letter from the office of the Mayor of Mulheim as to German marriage
18 A letter dated 23 July 2002 from the office of the Mayor of Mulheim states that there is a record in that office of the marriage of "Emilja Kolodon" to "Wladystow Knapzyk" on 15 May 1945 at the registry office in Velbert.
19 An application for assistance dated 27 October 1947 gives the family name of "Knapczyk". The marital status of the applicant is given as "m". It lists "Emilia Kolodzan" as the head of the family, having been born on 18 October 1925 in Krakow in Poland. It refers to two children, namely, a daughter "Emilja" born on 31 January 1946 in Mulheim Germany and a son, Stanislaw, born on 14 July 1948. His place of birth is not recorded. His name appears to have been added to the document at a later time than the other two. The document also lists Emilia [Marie's] places of residence for the preceding 10 years. Between 1937 and April 1941, she resided in Krakow, Poland. From April 1941 to May 1945, she lived in Velbert-skeiuland, Germany. From May 1945 to November 1946 she lived in a DP camp in Mulheim Germany with her daughter. Between November 1946 and October 1947 she was in a DP camp in Neu-Krakow-Menden, Westfalin, Germany, also with her daughter. The documents produced by her at the time of that application include a birth certificate for her daughter issued by the registry at Mulheim and dated 6 November 1946.
International Refugee Organisation (IRO) Certificate
20 An IRO certificate for eligibility dated 12 April 1950, records that "Emilia Knapczyk nee Kolodzan" born on 18 October 1925, is accompanied by her daughter Emilja born on 31 January 1946 and a son Stanislaw born on 14 July 1948. The signature "Knapczyk Emilia" on the certificate appears to be similar to that which appears on the South Australian marriage certificate.
Letter from Births Deaths and Marriages Adelaide
21 A letter obtained by the defendants and dated 4 October 2002 from the Registrar of Births Deaths and Marriages in South Australia states:
"[A]ccording to a letter dated 15 May 1958 from the then Deputy registrar, 'the registration of birth of your two children Stanislaw and Emilia were entered into the records of this office on the declaration and evidence given by you and your wife in 1952."
22 Regrettably there are no records now in existence to explain why that action was taken, nor have any supporting declarations or evidence survived. The letter further states that the author was "unable to establish on what basis the children's births were registered, nor on what evidence Mr Korczynski was entered as the legitimate father of the children". The registrar indicated that pursuant to the legislation then in force, viz Births Deaths and Marriages Act 1936 (the 1936 Act), there was no statutory provision for the registration in South Australia for children born overseas. The registrar also stated that "to the best of my knowledge it has never been the policy of this office to register children born overseas".
23 The plaintiffs submitted that there were three alternative bases upon which I could find that Emilia Gabriel was a child of the deceased:
24 First, that the evidence established on the balance of probabilities that Emilia Gabriel was the biological child of the deceased.
25 Secondly, consistently with the reasoning of the court in Re Sinodinos (1994) 63 SASR 42, the deceased could be deemed to be the father of Emilia Gabriel by virtue of the definition of "child" in s 4 of the Inheritance Act and s 7(b) of the Family Relationships Act 1975 (SA) (the Relationships Act).
26 Thirdly, that "child" in the Inheritance Act should be given a liberal interpretation to include persons formally acknowledged or held out by the deceased person to be his child.
27 I now turn to each of the arguments advanced by the plaintiffs.
First, does the evidence establish that Emilia Gabriel was the biological child of the deceased?
"6. The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act:-
(a) the spouse of the deceased person;
(b) a person who has been divorced from the deceased person;
(c) a child of the deceased person;
...
(g) a child of a spouse of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
(h) a child of the child of the deceased person;
(i) a parent of the deceased person who satisfies the court that he cared for, or contributed the maintenance of, the deceased person during his lifetime;
(j) a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime."
29 The plaintiffs rely on s 6(h) of the Act. They maintain that the evidence establishes on the balance of probabilities that Emilia Gabriel is the biological child of the deceased and they are therefore entitled to make a claim as her children. This requires an analysis of the documents which have been placed before me.
30 The South Australian birth certificate clearly states that the deceased was the father of Emilia Gabriel. It appears that he and his wife Emilia Marie provided a declaration to the registrar to support that registration although the content of that declaration is unknown.
31 The various other South Australian documents also indicate that the deceased held Emilia Gabriel to be his daughter during his lifetime. The German birth certificate, however, records the father of the child Emilia (Emilja) as being Wladyslow Knapzyk. The reference to Emilia in the German certificate is clearly a reference to Emilia Gabriel as the place and date of birth are identical to the particulars contained in the South Australian certificate. The German birth certificate records her mother as Emilia Knapzyk nee Kolodin but in the South Australian birth certificate her mother is referred to as Emilia Korcszynski, formerly Knapczyk. In the South Australian marriage certificate, however, Emilia Marie's father is said to be "Jan Knapcyk".
32 It was submitted on behalf of the plaintiffs that I should rely upon the South Australian birth certificate in preference to the German birth certificate on the basis that the defendants had not stated the provenance of the German certificate and there was no evidence that the records were kept under "sanction of public authority" or that they are "recognised as authentic records": Lyell v Kennedy [1889] UKLawRpAC 36; (1889) 14 App Cas 437. They also submitted that there was no evidence before the court of any safeguards to ensure the accuracy of the documents which purported to establish the truth or otherwise of events that occurred 58 years ago. Further, I could take judicial notice of the situation in Germany in 1945-46 and find that as a consequence record keeping may have been less than a priority.
33 The German certificate appears, however, on its face to be a valid document. It is signed by the registrar. The registrar has certified that the copy is identical to the one held at the registry office. It bears a stamp which appears to be authentic of the Registry Office of Mulheim an der Ruhr.
34 Under the common law "[f] oreign registers of baptisms and marriages or certified extracts from them, are receivable in evidence in the Courts of this country, as to those matters which are properly and regularly recorded in them, when it sufficiently appears (in the words of Mr Hubback's learned work on Evidence) that they 'have been kept under the sanction of public authority, and are recognised by the tribunals of the country' (ie of the country of where they are kept) 'as authentic records'." Lyell v Kennedy (supra) at 448-9 per Earl of Selbourne.
35 In this case, the German certificate appears to have been kept under sanction of public authority and to be recognised as an authentic record as illustrated by the certification of the document and the accompanying letter from the office of the Mayor of Mulheim. There is nothing to suggest that the documents are inaccurate. I reject the invitation to take judicial notice of the situation in Germany during the aftermath of World War II to find that there was anything unsatisfactory about the record keeping at that time. In my opinion, the German birth certificate is properly admissible in these proceedings.
36 I am satisfied that Emilia Gabriel was born in Mulheim Germany on 31 January 1946 as that information appears consistently in the South Australian birth certificate, the German birth certificate, her Baptism certificate and the application for assistance, and in any event there does not appear to be any dispute about that. Further, the coincidence of birth date and name satisfies me that Emilia Gabriel is the person referred to in each of those documents. The letter from the Mayor of Mulheim refers to a record of the marriage of "Emilja Kolodon" to "Wladyslow Knapzyk" on 15 May 1945. That is about eight months prior to Emilia Gabriel's birth. There is no other evidence about Knapzyk, although the application for assistance dated 27 October 1947 gives the family name of Knapczyk and records the marital status of Emilia (Kolodeon) as married. The South Australian marriage certificate which records the marriage of the deceased to Emilia Marie, however, describes her as a spinster and gives her father's name as "Jan Knapczyk".
37 The history of this matter is therefore a confusing and is undoubtedly complicated by the movement of displaced persons at the conclusion of the second World War. The lack of direct evidence from any of the parties involved in the events which took place between 1945 and 1958, however, makes this a very difficult matter to resolve. At the end of the day I am faced with two ostensibly valid documents, ie the South Australian and German birth certificates both of which relate to Emilia Gabriel but each of which designates a different person to be her father. As the German certificate chronologically precedes the South Australian certificate, in my opinion, the probability is that Wladyslow Knapzyk referred to therein was the biological father of Emilia Gabriel. At best the probabilities are equal. The plaintiffs however carry the onus of establishing that it is more likely than not that the deceased was the biological father of Emilia Gabriel. They have failed to discharge that onus. I am not satisfied that Emilia Gabriel was the biological daughter of the deceased. The first argument advanced on behalf of the plaintiffs therefore fails.
38 The second argument was couched in the following terms:
Consistently with the reasoning of the court in Re Sinodinos (1994) 63 SASR 42, can the deceased be deemed to be the father of Emilia Gabriel by virtue of the definition of "child" in s 4 of the Inheritance Act and s 7(b) of the Relationships Act?
39 Section 4 of the Inheritance Act defines a child in relation to a deceased person to include "... a person who is recognized as a child of that person by virtue of the Family Relationships Act, 1975 ...".
40 Section 7 of the Relationships Act provides that:
"A person shall be recognized as the father of a child born outside marriage only if -
...
(b) he was acknowledge in proceedings for registration of the birth of the child (either in this State or in some other place) that he is the father of the child;
..."
41 The plaintiffs refer to the fact that a marriage certificate recording the marriage between Emilia Maria and Wladyslaw Kanpzyk has not been produced. The South Australian marriage certificate describes Emilia Maria as a "spinster". Emilia Gabriel was born on 31 January 1946. She was therefore born prior to the date of Emilia Maria's marriage to the deceased on 29 December 1951. Emilia Gabriel can therefore be determined to be a child born outside of marriage. The procedure by which Emilia Gabriel's birth was recorded at the South Australian office of Births Deaths and Marriages in 1952 as evidence by Emilia Gabriel's birth certificate and the letter from the Office of Consumer and Business Affairs dated 4 October 2002, constitute "proceedings for the registration the birth". Section 7(b) of the Relationships Act therefore applies.
42 In support of this submission, the plaintiffs rely on the decision of Olsson J in Re Sinodinos (supra). In that case, two infant children of Yasmin Sinodinos, who was said to be a child of the deceased or testator, sought provision out of the estate of the testator pursuant to provisions of the Inheritance (Family Provision) Act 1972. During the course of the hearing a question arose as to whether Yasmin was the biological daughter of the deceased. A preliminary issue was raised as to whether, in the event that Yasmin proved not to be the biological child of the testator, her children were eligible children for the purposes of s 6(h) of the Act or were otherwise entitled to claim.
43 Yasmin's mother was married to the testator. They subsequently divorced with the order becoming absolute on 30 October 1965. Yasmin was born on 4 February 1966. The testator signed the relevant documentation for registering the birth in his capacity as father and had treated Yasmin as his daughter during his lifetime.
44 For the purpose of determining the preliminary point it was assumed that Yasmin was not the biological daughter of the testator. Given that assumption Yasmin was treated as a "child born outside of marriage" within the meaning of the Family Relationships Act. At the time of Yasmin's birth, the registration of children born outside of marriage was governed by s 19 of the Birth and Deaths Registration Act 1936. This section stated a man could not be entered into the register as the father, except in certain circumstances. One of those circumstances was where the father had signed the certificate jointly with the mother (s 19(4)).
45 Olsson J held that by signing a notification of birth form, the testator had acknowledged he was Yasmin's father in accordance with provisions for the registration of births in the Births and Deaths Registration Act. He stated that " '[P]roceedings', within the meaning of that section are clearly not confined to legal proceedings, but extend to the processes to lead to registration of both envisaged by the registration act". Therefore under s 7(b) of the Relationships Act Yasmin was a child of the testator, and her children were entitled to make a claim under s 6(h) of the Inheritance Act.
46 The defendants agree that Emilia Gabriel was a child born outside the marriage of Emilia Marie and the deceased although they say that she is a child of the marriage of Emilia Marie to Wladyslow Knapzyk. They agree, however, that if Emilia Gabriel is regarded as a child born outside the South Australian marriage, the deceased could not be recognised as her father except by virtue of s 7(b) of the Relationships Act. They say, however, that that section does not apply as the application for registration for Emilia Gabriel's birth in 1952 did not constitute "proceedings for the registration of the birth" as there was no provision in the 1936 Act which allowed for registration in South Australia of a child born overseas. The defendants further submitted that Re Sinodinos (supra) was wrongly decided or at least that it could be distinguished.
47 On the face of it, the facts of Re Sinodinos are very similar to the facts of this case which would make it appropriate to adopt the reasoning of Olsson J to find that the plaintiffs are entitled to make a claim. There is, however, a distinguishing feature. Although the deceased participated in the process by which Emilia Gabriel's birth was recorded in South Australia, it is clear that the 1936 Act did not permit the registration of children born overseas.
48 Section 15(1) provides that "[t]he parent of every child born alive in the State shall furnish or cause to be furnished particulars for the registration of the birth.". Section 17(1) refers to children born at sea but states that "[I]f a child is born at sea whose parents ordinarily reside in the State, the birth may be registered in the State by a parent of the child in manner provided by this Part for the registration of children born within the State". That therefore limits the registration of births to those born locally. There is no provision to allow for the registration of foreign births. The Registrar of Births Deaths and Marriages in her letter dated 4 October 2002 confirms that there was no statutory provision in force at the relevant time for the registration of children born overseas and comments that to the best of her knowledge it has never been the policy of the office to register such children. She mentions that under the present legislation it is only possible to do so using discretionary powers, in very narrowly defined circumstances, which did not apply in this case.
49 I am satisfied therefore that the procedure whereby Emilia Gabriel's birth was registered in South Australia was invalid. I do not think, therefore, that the procedure by which Emilia Gabriel's birth was registered can be classed as "proceedings for the registration of the birth". Section 7(b) of the Relationships Act does not therefore apply and Re Sinodinos can be distinguished. The plaintiffs are not therefore entitled to make a claim based on that basis.
50 I now turn to the third argument advanced on behalf of the plaintiffs:
Should the definition of "child" in the Inheritance Act be given a liberal interpretation to include persons formally acknowledged or held out by the deceased person to be their child?
51 The plaintiffs argue that the Inheritance Act is a beneficial remedial statute and as such "it should be construed so as to give the fullest relief which the fair meaning of its language will allow: Bull v A-G (NSW) [1913] HCA 60; 1913 17 CLR 370 at 384.
52 The plaintiffs submitted that there was no reason in law or policy to restrict the meaning of "child" in the Inheritance Act only to biological children. "Child" should be interpreted as being any person formally acknowledged or held out by a testator in his lifetime as his child as had occurred in this case. It was further submitted that if the issue of biological paternity was at all relevant under the Inheritance Act it should only be taken into account in the assessment of the adequacy of any provision left for the testator's children, in this particular case, the grandchildren.
53 I am satisfied that in this case the deceased acknowledged and maintained throughout his life that Emilia Gabriel was his daughter. This is clearly demonstrated not only by the fact that he participated in the registration of her birth in 1952, but that in each of the wills made by him in 1992 and 1998 he referred to her as his daughter.
54 The suggestion that the term "child" in the Inheritance Act should be given an expanded meaning was one of the arguments put to Olsson J in Re Sinodinos. He referred to that argument (at p 45) and said:
"... It was strongly pressed on me that, having regard to the obvious social objects of the statute, a liberal interpretation should be placed upon the word "child", so as to encompass (inter alia) persons acknowledged and/or held out by a testator, in his lifetime, as his natural child. Thus it was contended that, whatever was the true biological status of Yasmin, she was, on the evidence, a "child" of the testator - so that her children were, in turn, entitled to claim the benefit of the Inheritance Act.
Such a contention raises a substantial issue of general importance and potential widespread impact. If this case fell to be disposed of solely on such a basis then I would consider the issue to be one appropriate for the consideration of the Full Court."
55 Ultimately, however, he did not find it necessary to determine the issue on the facts of that case. Subsequently, in Popple v Rowe [1998] 1VR 651, the Victorian Supreme Court considered a similar argument in relation to stepchildren.
56 In Popple v Rowe stepchildren of the deceased sought provision under Pt IV of the Administration and Probate Act 1958 (Vic). The deceased died in May1995. His wife had died in 1982. There were no children of the marriage, although the wife had three children from a previous marriage who made the application for provision under Pt IV.
57 A master ordered that the following question be determined as a preliminary point:
"Do the plaintiffs, as children of the deceased's wife, who are not children of the deceased and who were never adopted by the deceased, have standing to bring this proceeding pursuant to Part IV of the Administration and Probate Act seeking provision for their maintenance and support out of the estate of the estate of the deceased?"
58 The judge, at first instance, determined that the word "children" in the Act included stepchildren and found that the applicants had the capacity to initiate Part IV proceedings. In so doing, the judge referred to a number of matters that were said to show that family relationships had changed greatly in recent years and that what once might have been seen to be essential to the understanding of "family" was no longer so. Reference was also made to dramatic changes which had taken place in reproductive technology and which was relevant to show that significant changes had taken place in society.
59 The executor of the estate appealed to the Full Court. On appeal, the argument put by counsel for the respondent was similar to that which the plaintiffs now urge upon me, viz that as the Family Provision legislation was remedial in nature it should be given a wide and liberal construction so that its fundamental purpose of ensuring that persons within the deceased's family who have a legitimate claim upon the estate were adequately maintained. Thus it was submitted that "children" should be given a "popular and flexible" meaning, consistent with current social conditions.
60 The Full Court in Popple v Rowe (supra) rejected the arguments put on behalf of the stepchildren. They were unanimous in answering the question in the negative and ordered that the proceedings brought by the stepchildren be dismissed.
61 In the course of his reasons, Brooking JA said at (at 653) that the word "children" (in s 91) was not used as a "popular, loose and flexible" expression. The word "children" meant the natural children of the deceased. He later said (at 657):
"Remedial the legislation no doubt is, but with all the interpretative benevolence in the world one cannot arrive at the contrary result. I do not derive any real assistance from the notion of a liberal interpretation in considering whether a category of person is intended by Parliament to have any rights at all under the legislation. 'Children' in s 91 is not an expression like, say, 'wireless telegraphy', to be interpreted, as his Honour thought in this case, in the light of modern scientific advances or changing practices in the community."
"It can be accepted that the Family Provision legislation is remedial and that, as a consequence, 'must be so construed as to give the most complete remedy which the phraseology will permit': Holmes v Permanent Trustee Co of NSW Ltd [1932] HCA 1; (1932) 47 CLR 113 at 119; Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 at 513. The fact, however, that the legislation is remedial in my view requires that the court should be liberal in the exercise of its powers once it determines to exercise the jurisdiction it has in favour of an eligible applicant. It cannot mean, in my opinion, that it is to be benevolent in its interpretation of those who are or may be eligible to make application."
63 He went on to say (at 659) that in his opinion "the word 'children' does have a fixed, rather than protean, meaning and it is confined to applicants who have a blood relationship to the deceased unless a statutory provision has been made to the contrary". He thereafter set out in some detail his reasons for reaching that conclusion and commented (at 659):
"The legislation may be remedial in the sense that I have already attributed to it, but it does invest the court with the power to interfere in the freedom of the deceased to dispose of the estate as he or she wishes. The remedial nature of the Statute enables the court to exercise its jurisdiction benevolently in the interests of those entitled to claim, but it should not be expanded to the point where uncertainty as to eligible applicants will itself contribute to the defeat of the testator's freedom of disposition."
64 In this case, if Emilia Gabriel had survived the deceased the present difficulty would not have arisen. She would have inherited a portion of the deceased's estate in accordance with the terms of his will in which he made provision for her as his daughter and thereafter the plaintiffs would have been provided for out of her estate. The funeral notices and memorial cards for Emilia Gabriel also indicate that at the time of her death the relationship of father and daughter was also accepted by the rest of the family. In those circumstances, now to deprive the plaintiffs of a claim against the estate of the deceased would appear to be harsh. Nevertheless, for the reasons expressed by the court in Popple v Rowe, I am not persuaded that the definition of "child" should be given the expanded meaning contended by counsel for the plaintiffs so as to make them eligible to claim. In any event, I note that in his will dated 30 April 1992 the deceased included a survivorship clause pursuant to which the children of each of Emilia Gabriel, Anna Marie and Stan Peter would have inherited the share of his/her parent in the event of his/her earlier death. In the will admitted to probate, however, which is dated 23 October 1998, a new clause limited survivorship to the children of Anna Marie and Stan Peter which is indicative of a specific intention on the part of the deceased to exclude the plaintiffs from benefiting from his estate.
65 Taking all of these matters into account, I do not consider that the circumstances of this case, as unusual as they appear to be, enable me to find that the plaintiffs have a right to claim on the basis of their mother having been held out by the deceased to be his child during his lifetime. To adopt the comments of Winneke P in Popple v Rowe the construction contended by the plaintiffs would, in my opinion, "create uncertainty with regard to those who have standing to make application where ... certainty was intended" ... The word "children" should therefore bear "the meaning which it has always borne (subject to statutory exception) and is not to be construed as having a popular, loose or ambulatory meaning". The plaintiffs are therefore excluded as eligible applicants.
66 The answer to the preliminary point referred for my determination is therefore "No".
MCGUFFIE & ANOR
KORCZYNSKI & ANOR No. SCCIV-02-1255 [2003] SASC 178
(1994) 63 SASR 42
(1932) 47 CLR 113
(1956) 95 CLR 494
The preliminary point was answered No; the plaintiffs were not eligible to claim as children of a child of the deceased.