"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, eg Rex v Frith [(1914) VLR 658] at 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 [(1974) 1 NZLR 686]; Rex v Frith . The direct connection between the relationship of step-parent and stepchild and the marriage of which it arises has often been stressed. Thus it has been recognised 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 Eq Cas 319 at 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 [(1948) NZLR 909] at 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, eg. McGaughey v Grand Lodge AOUW of State of Minnesota (1921) 180 NW 1001; Brotherhood of Locomotive Firemen and Enginemen v Hogan [(1934) 5 Fed Supp 598] at 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 86."
34 In Wilkinson v Joughin (1866) LR 2 Eq Cas 319, to which his Honour referred, the testator bequeathed property to "my step-daughter Sarah Ward". The marriage between the testator and the mother of the child was void, because the mother was married to another man. The bequest was upheld on the ground that, although the testator had been defrauded by the mother of the child and "induced to believe that the child was his step-daughter" (at 326), there was nonetheless a sufficient description of the child as the person intended to be benefited. The child was not the testator's step-daughter, but was identified by name.
35 In Mander v O'Toole (1948) NZLR 909, to which his Honour also referred, the question was whether the son by a previous marriage of the deceased's former wife, they having been divorced, was a "step-son" of the deceased and so could claim under the Deaths by Accident Compensation Act 1908 (NZ). "Step-son" was not defined. Finlay J held that it extended only to children "who possessed that character by virtue of a subsisting marriage when the cause of action sought to be enforced under the Act arose" (at 912-3).
36 In re Burt (1988) 1 Qd R 23 the question was whether a step-relationship subsisted after the termination of the marriage which created it for the purposes of an application allowed under the Succession Act 1867-1977 (Qld) to a step-child of the testatrix. It was held that it did not. "Step-child" was defined in relation to any person as a child by a former marriage of that person's husband or wife, and marriage at some time was therefore necessary: the question turned on the termination of the marriage. But the reasons included consideration of the ordinary meaning of the word.
37 McPherson J said (at 26-7) -
"Apart from these considerations of strict statutory interpretation, there is also the natural meaning of the word 'stepchild'. The New Webster Encyclopaedic Dictionary (1980 ed) gives as the meaning of the word 'The child of a husband or wife by a former husband or wife'. That may be said to support the contention of the respondents on this appeal; but it differs from an earlier definition in Webster's New International Dictionary , which was: 'A child of one's wife or husband by a former marriage'. See Brotherhood of Locomotive Firemen and Enginemen v Hogan 5 Fed Supp 598 (1934), at 600. The most precise correspondence with the definition of 'stepchild' adopted by the Queensland amendment in 1943 tends to suggest that the draftsman of that amendment used the earlier Webster as his source. In Hogan's case, which was referred to by Dean J in Re Cook (1985) 59 ALJR 669, 674, Nordbye J, undertook an extensive survey of decisions on the meaning of the word 'stepchild' in various American insurance policies and in statutes in which relationship by 'affinity' is a criterion. His Honour appears to have accepted, as correctly reflecting the effect of the majority of those decisions, the proposition then stated in 2 Corpus Juris 379 that 'death of the spouse terminates the relationship by affinity … ". The basis of the underlying reasoning is that a step-relationship is one created by marriage, which therefore comes to an end when the marriage that brought [sic] into existence is terminated by the [sic] death or a fortiori by divorce."
38 His Honour then considered Mander v O'Toole, and said (at 27-8) that it and the United States authorities showed that "there was an ordinary and 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".
39 Andrews CJ expressed broad agreement with the reasons of McPherson and Thomas JJ. Thomas J's reasons were to the same effect as those of McPherson J, and included (at 32) that the "direct connection between the relationship of step-parent and stepchild and the marriage from which is [sic: it] arises" was recognised in re Cook; ex parte C and the United States cases.
40 Closer to the present case, in R v Umanski (1961) VR 242 the applicant had been convicted of incest, an offence under s 52 of the Crimes Act 1958 (Vic) which relevantly provided -
"52(1) Whosoever unlawfully and carnally knows a woman or girl of or above the age of ten years such woman or girl being to his knowledge his daughter or other lineal descendant or his step-daughter shall be guilty of felony …".
One of the issues was whether the Crown had proved the step-relationship. The complainant was the daughter by another man of a woman whom the applicant had subsequently married.
41 It was said (at 245, per Herring CJ, Dean and Adam JJ) -
"It was therefore necessary to prove that the girl was his step-daughter. It was proved that she was the daughter of Mrs Umanski and that the applicant knew this. But it was also necessary for the Crown to prove that applicant and Mrs Umanski had been lawfully married, for unless this was so, then the girl was not the applicant's step-daughter."
It was held that the marriage had not been proved, and the applicant's conviction was quashed.
42 There is thus substantial support for the conclusion to which Freeman DCJ came. Marriage between the step-parent and the parent of the child is the basis of the step-relationship, and this is underlined by the decisions that the step-relationship comes to an end on the termination of the marriage. In the present case it is not necessary to consider whether or not a common law marriage would be sufficient, as a common law marriage is more than a de facto relationship and the appellant disclaimed reliance on the existence of a common law marriage prior to the marriage of 20 June 1998.
43 R v Dawson does not stand to the contrary of this necessity for marriage. In accord with R v Frith (1914) VLR 658, cited by Deane J in re Cook; ex parte C, it was there held that a step-daughter in s 73 of the Act included an illegitimate daughter of the offender's wife, and marriage between the offender and the wife was not in question. But the appellant sought to gain support from R v Frith and R v Dawson in another way.