Administration and Probate Act 1958

Administration and Probate Act 1958 - Whether stepchildren entitled to apply for provision under Part IV of Act - The word 'children' in s.91 does not include stepchildren.

Counsel for the Appellant: Mr J.V. Kaufman QC and Mr R.R. Boaden

1. Gentlemen, we have formed a fairly clear view about this case and we will deliver our judgment. I will invite Mr Justice Brooking to deliver the first judgment.

2. Until very recently it had not, so far as I am aware, been suggested that a stepchild was entitled to apply for provision under Part IV of the Administration and Probate Act 1958. On 14 February it was judicially determined that such an application is competent. Eric William Popple died in May 1995. His wife had died before him, in 1982. There were no children born of the marriage, but the wife had three children of a previous marriage, the respondents to this appeal, who have made application for provision under Part IV. When and how the wife's previous marriage was dissolved does not, I think, appear. The Listing Master ordered the determination as a preliminary point of the following question, described in the order as one of law: "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 deceased?"

3. The answer given to this question last month was: "The word 'children' in the Act includes stepchildren. The applicants have the capacity to initiate Part IV proceedings".

4. No doubt the answer to the question is not to be read literally, for if so read it would mean that stepchildren were entitled to share as children in a distribution on intestacy. It should be read as confined to Part IV.

5. By leave granted by this court, the executor of Mr Popple's will has appealed against the order determining the preliminary question. The question argued before the judge, and answered by him in his reasons for judgment and in the formal order, was whether stepchildren are "children" within the meaning of s.91 of the Act, which enables application for provision to be made by or on behalf of the "widow widower or children" of the deceased. This was in accordance with the sense of the question, which by its use of the words "as children of the deceased's wife, who are not children of the deceased and who were never adopted by the deceased", shows (at all events if one is to have regard to the unstated fact that the respondents were children of a marriage) that the inquiry is whether stepchildren as such are competent applicants. The question makes no reference to the fact that the mother of the children had predeceased her second husband, so that the marriage no longer subsisted at the time of his death.

6. Dr Hardingham, who did not appear below but appeared before us on behalf of the respondents, argued that, even if his clients did not have standing by virtue of being stepchildren of the deceased, they had it by virtue of being persons who might fairly be regarded as children of the deceased. This contention was not sought to be raised as a preliminary question when the question was being formulated, and was not in fact raised by the question as formulated, and was not in fact argued or sought to be argued before the judge. The respondents have not given any notice of contention under r.64.17(5), although with the concurrence of Mr Kaufman for the appellant we have allowed the point to be argued. I have a clear view that it is unsound.

7. Dr Hardingham relied on Brock v Wollams (1949) 2 KB 388, which was applied in Dyson Holdings Ltd V Fox [1975] EWCA Civ 8; (1976) 1 QB 503. In the former case the question was whether a child was "a member of the tenant's family" residing with him at the time of his death so as to be entitled to the protection which would be given to her by the Rent Restriction Acts if the tenant was a statutory tenant. The child had not been legally adopted by the tenant but had been adopted by him in fact at the age of five or six, and had lived with him for 27 years, until her marriage on the death of her husband, three years later, she had returned to live with the tenant and was still living with him at the time of his death. The Court of Appeal determined that she was a member of his family.

8. Several things may be said of this decision. The expression in question was "family", not "children". It had previously been said of that legislation that its language resembled that of popular journalism: Salter v Lask (1949) 2 KB 584 at 586 per MacKinnon LJ. Bucknill LJ at 393-4 accepted the view that "family" was a popular, loose and flexible expression, which included "an adopted child in a case of this kind". Denning LJ, at 396, was of opinion that the expression included "not only legitimate children but also stepchildren, illegitimate children and adopted children, whether adopted in due form of law or not". Dr Hardingham implicitly relied on the question posed by Cohen LJ at 395: "Would an ordinary man, addressing his mind to the question whether Mrs Wollams was a member of the family or not, have answered 'yes' or 'no'?" But this was said by way of adopting and applying the view of Bucknill LJ that "family" was a popular, loose and flexible expression and asking whether the expression in its loose, popular sense included a child adopted in fact who lived with her adoptive father.

9. Dr Hardingham relied on the following facts deposed to in support of the Part IV application in making his submission that the respondents might fairly be regarded as children of the deceased: - Two of the respondents, Christopher and Jennifer, began living with the deceased as his children when their mother and natural father separated in 1957, Christopher and Jennifer being at that time six and four years of age respectively; - After the marriage of the deceased to the respondents' natural mother there was effectively no contact permitted between the respondents and their natural father; - The respondents were accustomed to calling the deceased "Dad" and the deceased habitually referred to them as "my "or "our" children; - From time to time the deceased expressed an intention to adopt the respondents, but this was never proceeded with, evidently in consequence of the strong opposition of the respondents' natural father.

10. A number of these alleged facts will be contested if the application proceeds to a hearing, but for present purposes I shall assume their correctness. On that assumption, it would not on those facts be open to a judge to find that the respondents were children of the deceased. In my opinion, "children" is not used in s.91 as a popular, loose and flexible expression. It means issue in the first generation - sons and daughters, children of the blood, or "natural children", as I shall call them. It is not to be expected that, in a statute authorizing judicial interference with the distribution of estates effected by will or by the operation of the law concerning distribution on intestacy, Parliament, in enabling applications to be made by the deceased's "widow widower or children, would use those expressions as popular, loose and flexible ones. For if the word "children" is used loosely, then presumably "widow" and "widower" are also (as Dr Hardingham indeed contended) used as vague and inexact terms, and the inquiry will there be, not whether the person concerned survived the deceased, having been the spouse of the deceased at the time of death (I ignore the vexed question whether one who has remarried remains a widow or widower), but whether the person concerned may "fairly be regarded" as the widow -or widower - of the deceased. This approach would not sit well with the extended definition of "widow" in s.91, which expressly includes certain categories of former wife. And it would introduce great uncertainty into the operation of statutory provisions (by which I mean Part IV) permitting variation of the consequences of the legal rules governing the distribution of assets after death. The status of widow, widower or child must exist at the time of death. What would be the position of a person who "might fairly have been regarded" as a widow, widower or child at some point in time before the death but who would not fairly be so regarded at the date of death? Can the status be lost, and re-achieved, from time to time, as a result of the fickle behaviour of the would-be widow, widower or child or the prospective deceased? And how is the judge to direct himself or herself in considering whether a person may fairly have been regarded as widow, widower or child? In response to a question from the bench, Dr Hardingham was unable to refine the test. The test put forward is a most uncertain one in a field where certainty is most desirable. On Dr Hardingham's suggested approach, there could be a number of persons who had enjoyed a de facto relationship with a deceased man or woman competing for the status of widow or widower.

11. The appellant in Barrett v Thurling (1984) 2 NSWLR 683 - a decision I shall mention again later - was in all respects brought up and regarded as a member of the family of which the deceased became, in effect, the mother, yet she failed.

12. I turn to the main point argued by Dr Hardingham -whether stepchildren are "children" within the meaning of S.91. The textwriters are uniformly of the view that they are not: Wright, Testator's Family Maintenance, 3rd ed., p.13; Hardingham, Neave and Ford, Law of Wills, p.264; Dickey, Family Provision After Death, pp.32 and 36-37; de Groot and Nickel, Family Provision in Australia, p.90. it is perhaps worth noting that the same view is put forward by Ms R.F. Atherton in her discussion paper of July 1994 prepared for the Attorney-General's Advisory Council on the Desirability of Reforming Aspects of Part IV. In some of the Australian States, and in the Territories, and in New Zealand, stepchildren as such have been made eligible by statute to apply under the family provision legislation, some of the statutes requiring in addition that the stepchild shall have been maintained by the deceased immediately before the death: Succession Act 1981 of Queensland, s.40; Inheritance (Family Provision) Act 1972 of South Australia, s.6; Testator's Family Maintenance Act 1912 of Tasmania, s.2; Family Provision Act 1969 of the Australian Capital Territory, s.7; Family Provision Ordinance 1970 of the Northern Territory, s.7; Family Protection Act 1955 of New Zealand, s.3. In New South Wales, the Family Provision Act 1982, s.6, allows stepchildren to apply, not as such, but only if they can bring themselves within the category of persons who were, at any particular time, wholly or partly dependent upon the deceased. In the United Kingdom the Inheritance (Provision for Family and Dependants) Act 1975, s.1, allows a stepchild to apply not as such but only if he or she falls into the category of a person treated by the deceased as a child of the family in relation to a marriage to which the deceased was a party. The statutes which confer status upon a stepchild as such sometimes do and sometimes do not define that expression, and the definitions sometimes do and sometimes do not require that the child be not only the child of the spouse of the deceased but also the child of the spouse by that spouse's former marriage.

13. The question has from time to time arisen whether the relationship of step-parent and stepchild survives the dissolution of the marriage between the natural parent and the step-parent; see, for example, R v Cook; ex parte C. [1985] HCA 47; (1985) 156 CLR 249 at 263 per Deane J; Basterfield v Gay [1994] TASSC 120; (1994), 3 Tas R 293 and contrast Re Estate of Bordeaux 225 P 2d 433 (Wash. 1950). In the present case the marriage was dissolved by the death of the natural mother in 1982. The respondents contend that, notwithstanding that the marriage giving rise to the relationship came to an end long before the death of the testator, they are "children" within the meaning of s.91 simply by virtue of the fact that they are the children by a former marriage of the woman who married the testator. I am prepared to assume in their favour that the dissolution in 1982 of their mother's marriage to the testator puts them in no worse position than if their mother had not predeceased the testator, and in speaking of stepchildren hereafter. I shall ignore the distinction between cases where the testator's marriage still subsisted at his death and cases where it did not.

14. Family provision was introduced into Victoria by the Widows and Young Children Maintenance Act 1906. This allowed the "widow or children" of a testator and the "children" of a testatrix to apply for provision. "Children" were defined as not including any person being a male who was over 18 years of age or being a female who was over 21 years of age or married. These provisions were in substance continued at the time of the 1915 Consolidation, becoming Part V of the Administration and Probate Act 1915. They were again continued in the 1928 Consolidation as Part V of the Administration and Probate Act 1928. Two relevant changes were made by the Administration and Probate (Testator's Family Maintenance) Act 1937. The first was the repeal of the definition of "children", with the result that children became entitled to apply regardless of their age or (in the case of females) marital status. The second change was to add widowers to the category of persons entitled to apply, the phrase used in defining competency being that which has been used ever since, "widow widower or children". No relevant change was made when the provisions were enacted as Part IV of the Administration and Probate Act 1958.

15. Two further changes were made by the Administration and Probate (Family Provision) Act 1962. The first was the defining of "widow" for the purposes of s.91 as including any former wife of the deceased who was at the date of his death in receipt of or entitled to receive payments of alimony or maintenance whether pursuant to a court order or otherwise. This provision still appears in the legislation. The second change was to define "children" for the purposes of s.91 as including illegitimate children of the deceased totally or partially dependent on or supported by the deceased immediately before his death or in respect of whom there was in force against the deceased any order for the payment of maintenance or confinement expenses. This second definition was overtaken and amended by the Status of Children Act 1974, by s.3 of which, for all the purposes of the law of Victoria the relationship between every person and his father or mother is to be determined irrespective of whether the father and mother are or have been married to each other. That Act repealed only the word "illegitimate" in s.91, producing what was regarded by members of the legal profession at the time as a strange and unintended result. The slip - if so it should be regarded - was cured by the Administration and Probate (Amendment) Act 1977, which repealed the balance of the words introduced in 1962 in relation to illegitimate children.

16. The result is that the position of children formerly called illegitimate is now governed by the Status of Children Act 1974 and the only definition contained in the present family provision section, s.91 of the Administration and Probate Act 1958, is the inclusive definition of "widow", which brings in certain former wives. The entitlement of children the subject of an adoption order to make a claim under Part IV has of course always depended on the terms of the legislation dealing with adoption, currently the Adoption Act 1984. Under the earlier legislation it was established that an adopted child was entitled to apply for provision out of the estate of a deceased adopter: Dehnert v Perpetual Executors & Trustees Association of Australia Ltd [1954] HCA 47; (1954) 91 CLR 177; Re S.; H. v T. [1975] VicRp 3; (1975) VR 47.

17. The history of the legislation in Victoria dealing with family provision very strongly suggests that the words "widow", "widower" and "children" used in the present s.91 are not used in any loose sense and that "children" means, except to the extent to which other legislation, like the Adoption Act, has effect, the natural children of the deceased. Indeed it can be said that until the amendment made by the Act of 1962 already mentioned "children" did not include what were in those days called illegitimate children; this matter is now governed by the Status of Children Act 1974. Had it been desired by the legislature to include stepchildren as eligible applicants, that category would have been expressly mentioned in s.91. History shows that when Parliament wishes to increase the categories of eligible claimant, or to enlarge an existing category, or to create a limited category, it does so by appropriate and express legislation.

18. Until 1962 it was clear that an ex-nuptial child was not a competent applicant under Part IV. The notion that, while an ex- nuptial child was not a "child" for the purposes of Part IV, a child having no blood relationship with the deceased was a competent applicant, I find a strange one. In this regard I refer to what was said by Samuels JA in Barrett v Thurling (1984) 2 NSWLR 683 at 684.

19. It is unnecessary to mention further the difficulties of interpretation which have emerged in relation to legislation entitling stepchildren to apply for family provision.

20. I am disposed to think that it is implicit in the judgments of Dixon CJ and Kitto J in Dehnert's case that the expression "children" in Part V of the Administration and Probate Act 1928 meant natural children. I refer in particular to what was said by Kitto J at 191 ("as though he were the legitimate child of the adopter"). In New South Wales the Testator's Family Maintenance and Guardianship of Infants Act 1916 made eligible as claimants "the widow husband or children of the deceased". In Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 498 Gibbs J, in a judgment with which Stephen J and Mason J concurred, plainly proceeded upon the basis that stepchildren were not "children" within the meaning of that provision. Four years later, in Barrett v Thurling, the Court of Appeal of New South Wales actually decided the point, holding that stepchildren were not competent applicants. An observation by Underwood J in Basterfield v Gay [1994] TASSC 120; (1994) 3 Tas R 293 at 300 is to the same effect. In New Zealand the view has been taken that "children" in the legislation means offspring of the first generation: Pulleng v Public Trustee (1922) NZLR 1022 esp. at 1027-8; compare Re Bell (1964) NZLR 912 at 932 ("natural children"). In the United Kingdom, as I have said, the legislation allows a stepchild to apply not as such but only if he or she is in the category of a person treated by the deceased as a child of the family in relation to a marriage to which the deceased was a party. It is of considerable interest that in Leach v Lindeman (1986) Ch. 226 at 231 Slade LJ, speaking in effect for the Court of Appeal, said that the word "child" in the legislation did not include a stepchild.

21. It is unnecessary to consider whether s.5(2) of the Administration and Probate Act 1958 itself suggests that "children" in Part IV means natural children. My sketch of the history of the legislation shows that what is now Part IV originated in the Act of 1906. I have earlier made passing reference to the meaning of the expression "children" in relation to distribution on intestacy; plainly a stepchild cannot take on the step-parent's intestacy, or a step-parent on the stepchild's.

22. Dr Hardingham relied on what was said by Kirby P and McHugh JA in Harris v Ashdown (1985) 3 NSWLR 193. The question there was whether a gift by will to the children of the testator's children included a child adopted by a daughter of the testator after his death. The Court of Appeal of New South Wales held that it did, Priestley JA dissenting. Kirby P said at 200 that "it would be much safer to include in the expression 'child', as used in a will, legitimate and ex-nuptial, adopted and stepchildren, unless, from the language of the will itself, or from admissible surrounding circumstances, it is shown that a narrower meaning was intended by the testator". The view of McHugh JA was in substance expressed as the view that, having regard to the facts known to the testator at his death, "child" and "children" should be construed as including adopted child and children. As the judgment of Kirby P itself recognizes, decisions dealing with the construction of statutes may be of little if any assistance when the court is called upon to construe a will. The converse is also true.

23. In my opinion it is clear that "children" in s.91 does not include stepchildren. 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.

24. Section 7(1) of the Status of Children Act 1974 reinforces the view that I would take in its absence of the meaning of "children" in s.91 of this legislation. I do not set that sub-section out, but it appears to me to proceed upon the basis that "children" in Part IV means natural children.

25. I would therefore allow the appeal with costs, set aside the order below, and substitute an order as follows: 1. That the preliminary question: "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 deceased?", be answered "no". 2. That the proceeding by originating motion be dismissed. 3. That the defendant's costs of the said proceeding, including the costs of the determination of the preliminary question and costs reserved, be paid by the plaintiffs.

26. I agree with Brooking JA that this appeal should be allowed and that the preliminary question should be answered "No".

27. The word "children", where used in Part IV (Family Provision) of the Administration and Probate Act 1958 has, from the tine of the introduction of the legislation into this State, been construed as meaning the "natural children" of the deceased.

28. Since 1906, when the Widows and Young Children Maintenance Act first introduced into the legislation the right of a widow and child to make claim for further provision out of the deceased's estate, the word "children" has continued to be used in the same context. The word has survived amendments to and codification of the legislation in 1915, 1937, 1958 and 1962. Although the range of "children" who are entitled to apply has been broadened by the removal of age and marital status qualifications (Administration and Probate (Testator's Family Maintenance) Act 1937), the legislature in this State, unlike other State and Territory legislatures, has never specifically included "stepchildren" within the range of persons entitled to claim. Because a stepchild is not, as the name implies, a "child" of a deceased step- parent, it might be assumed that some further legislative broadening of those eligible to claim should be made before a stepchild would qualify. Thus in other States and Territories of Australia, similar legislation has made specific provision in favour of stepchildren as eligible claimants. (See, for example, Succession Act 1981 (Qld), s.40; Family Provision Ordinance 1970 (NT), s.7; Family Provision Act 1969 (ACT), s.7). It is to be noted that in those jurisdictions where stepchildren have been made eligible claimants such eligibility has usually been confined by qualifications such as dependency at the date of deceased's death or the continued subsistence, at that date, of the marriage giving rise to the relationship (Family Provision Act 1982 (NSW), s.7; Family Provision Ordinance 1970 (NT), s.7(2); Family Provision Act 1970 (ACT), s.7(2)). The Court of Appeal in Queensland has consistently interpreted the term "stepchild" in the Queensland legislation as referring only to a person who was still a stepchild at the date of the death of the deceased by virtue of the marriage of the natural parent subsisting with the deceased to that date (Re Marstella [1989] 1 Qd.R 838, Re Monckton (1996] 2 Qd.R 174).

29. The learned trial judge in this case took the view that neither the past interpretation of the legislation in this State, nor the fact that other State and Territory legislatures have made specific or general provision for stepchildren as eligible claimants, should preclude him from determining that the word "children" where used in s.91 Administration and Probate Act 1958 included "stepchildren". It was His Honour's view that: "the word 'children' in Part IV should be given the most liberal interpretation that a remedial Act requires, and one which reflects the present day popular meaning of its words. 'Children' now means any child within the testator's family structure, whatever that child's genetic origin and certainly includes a stepchild".

30. Dr Hardingham, who appeared for the respondents on this appeal, (but not before the learned trial judge) submitted that His Honour's construction of the word "children" in Part IV of the Act should be upheld. He submitted that because the "Family Provision" legislation was remedial in nature, it should be given a wide and liberal construction in order that its fundamental purpose of ensuring that persons within the deceased's family who have a legitimate claim upon his or her bounty are adequately maintained. Thus he contended that the word "children" should be accorded what he described as a "popular and flexible meaning", consistent with current social conditions, rather than a fixed or technical meaning. He submitted that the word "children" was not given any statutory definition in the Act and it was for the courts to determine its proper meaning according to its context and the surrounding circumstances. The fact that other legislatures in other States and Territories had made provision for eligibility of stepchildren was evidence only that the Parliaments in these jurisdictions were acting to reflect what had become the popular meaning of the word "children" in circumstances where the courts had failed to recognize the inevitable. It was Dr Hardingham's submission that once it was recognized that the word "children" was sufficiently flexible to include "stepchildren", the relationship did not end simply because the marriage giving rise to it had terminated before the deceased's death. He contended, therefore, that the Queensland authorities pointing to the contrary conclusion should not be followed.

31. Notwithstanding the conspicuous ability with which Dr Hardingham presented his submissions, I am not persuaded they are correct. 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. Nothing in my view to the contrary emerges from the authorities to which I have referred.

32. Contrary to His Honour's view, it is my opinion that 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 statutory provision has been made to the contrary. I have formed that conclusion for the following reasons: (a) If the word "children" in s.91 of the Act is to be given a flexible meaning having regard to its context and surrounding circumstances, likewise the words "widow" and "widower" must be given a similar construction. Dr Hardingham, as I understood him, conceded as much. Such a construction in my view sits uneasily with specific extended definition given to the word "widow" in S.91. The construction contended for by Dr Hardingham in my view will create uncertainty with regard to those who have standing to make application where, in my opinion, certainty was intended. 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. Dr Hardingham submitted that all stepchildren, whether of a subsisting marriage at death or not, should be eligible to claim and that it would be for the court in the exercise of its jurisdiction to determine whether the claim is sustainable in the circumstances. Such a construction would in my view produce the uncertainty which the legislation seeks to avoid. It is for this reason that if the classes of eligible applicants are to be broadened to include stepchildren it must be a matter for the legislature. Views may well differ as to whether a "stepchild" is to be regarded as a "child" of the stepfather and, if so, whether any qualifications should be imposed upon the eligibility of such a stepchild to make a claim. In the past the Victorian Parliament has been careful to express in statutory form any expansion to the classes of persons eligible to claim under Part IV of the Administration and Probate Act 1958 or its statutory predecessors. Thus, statutory amendments have been made to broaden the class of widow and children who may claim. "Widows" now include "any former wife of the deceased who was at the date of his death in receipt of or entitled to receive payments of alimony ... " (see s.91 Administration and Probate Act 1958, as amended by Administration and Probate (Family Provision) Act 1962). The range of children now entitled to claim includes adopted children (see s.53 Adoption Act 1984) and illegitimate children (see Status of Children Act 1974, s.7). The caution with which the legislature has acted to expand the classes of eligible claimants is, in my view, consistent with the words "widow, widower or children", where used in s.91, bearing a technical, rather than popular or flexible meaning. (b) To this point such authority and learned commentary as exists supports the view that a stepchild is not entitled to claim under Part IV of the Administration and Probate Act (Barrett v Thurling (1984) 2 NSWLR 685; de Groot & Nickel "Family Provision in Australia and New Zealand, Butterworths 1993 at p.90; Dickey "Family Provision after Death", Law Book Co 1992 pp.32-3). Indeed, as Brooking JA has already pointed out, a "discussion paper" prepared in July 1994 for the Attorney-General's (Vic) Law Reform Advisory Council on the desirability of reforming Part IV of the Administration and Probate Act 1958 proceeded on the clear view that the legislation currently precludes stepchildren as applicants. Dr Hardingham, in support of his submission that "children" should be afforded a flexible construction, referred us to some authorities where courts had been prepared to take a wide and popular view of the word "family" to include de facto spouses and their children in interpreting particular pieces of legislation or in interpreting the word "children" where used in a testator's will (Dyson Holdings Ltd v Fox (1976] 1 QB 503 at 508, per Lord Denning, MR; Brock v Wollams [1949] 2 KB 388 at 394; Harris v Ashdown (1985) 3 NSWLR 193, per Kirby, P. at p.200). With respect, I do not find these authorities of particular help in interpreting the meaning to be ascribed to the word "children" in s.91 Administration and Probate Act 1958.

33. I am accordingly of the view that the word "children" in Part IV of the Administration and Probate Act bears 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. In my view it excludes "stepchildren" as eligible applicants.

34. As indicated already, I agree with the orders proposed by Brooking JA.

35. I also agree that the appeal be allowed and I agree with the reasons given by The President and by Brooking JA for that conclusion.

36. The essence of the argument advanced on behalf of the respondent was that whatever relationship with the deceased might have been described by the word "children" in Part IV of the Administration and Probate Act 1958 when that Part (or its legislative predecessor) was first enacted, the relationship now extends to include stepsons and stepdaughters. That is, to adopt (and adapt) the definitions of "stepson" and "stepdaughter" that are given in the Oxford English Dictionary 2nd Ed, it is suggested that "children" of the deceased now include the sons or daughters, by a former marriage, of the deceased's husband or wife. (I leave to one side the further complication that may be presented when, as in this case, the later marriage had come to an end before the death of the deceased.)

37. Reference was made in the course of the argument, and in the reasons for judgment of the learned trial judge, to a number of matters that were said to show that family relationships have changed greatly in recent years and that what once may have been seen to be essential to the understanding of a "family" is no longer so. Reference was also made to the dramatic changes that have taken place, especially in recent years, in what is called reproductive technology. These are not matters that go directly to the meaning that is to be given to the word "children". They may be matters that show that significant changes have taken place in this society.

38. None of them can be permitted, however, to obscure the nature of the task which the court must undertake, which is the task of construing a statute. It is not the province of the court to decide whether some change to the legislation governing family provision is desirable.

39. It was accepted in argument that when the legislative predecessor of Part IV was first enacted the word "children" meant children of the deceased in the sense of children of the blood of the deceased. As the very words "stepson", "stepdaughter" and "stepchild" make plain, the relationship between such a person and the spouse of his or her parent is not the relationship of parent and child. That is not to say that the relationship may not have all of the hallmarks of loving care and nurture that should be found in the relationship between parent and child, but it is a different relationship. Nor is it to deny that the legislature has stepped in to treat some, who otherwise would not fall within the term "children of the deceased", as if they were children. When a minor is adopted, that person becomes the child of the adopting parents by operation of the adoption legislation. When a child is born as a result of some reproductive intervention, whether that is artificial insemination or some other form of intervention, the child becomes the child of the parent by operation of Part II of the Status of Children Act.

40. What is now suggested is that the meaning of "children", when used to refer to the children of the deceased, should be taken to have shifted over the years in such a way as would now have it include a stepchild. I do not accept that that has been shown to be so. Indeed, the very existence of the statutory provisions that I have mentioned suggests to me that the legislature does not accept (or for that matter intend) that the word "children" is now to be taken to include a stepchild. I do not accept that these acts are to be explained, as counsel for the respondents sought to do, as the legislature acting to eliminate doubt about the construction of words or expressions that are to be regarded as having a popular and ambulatory meaning.

41. There are cases in which the denotation of a word used in a statute can be seen to be changed. But that is not to say that the connotation of the word has shifted. That is, as Dawson J said in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 537: "... the attributes which the words will signify [the connotation] will not vary, but as time passes new and different things (the denotation] may be seen to possess the attributes sufficiently to justify the application of the words to them."

42. Street was a case that concerned the interpretation of the Constitution. In that context, the radio and television cases are, perhaps, the paradigm example of a shift in the denotation of words - in those cases the words "postal telegraphic and telephonic other like services". See R v Brislan [1935] HCA 78; (1935) 54 CLR 262; Jones v Commonwealth (No 2) [1965] HCA 6; (1965) 112 CLR 206; Herald & Weekly Times Ltd v Commonwealth [1966] HCA 78; (1966) 115 CLR 418. See also Attorney-General for NSW v Brewery Employees Union of NSW (The Union Label Case) [1908] HCA 94; (1908) 6 CLR 469 at 610; Lansell v Lansell [1964] HCA 42; (1964) 110 CLR 353 at 366, 369, 370; R v Federal Court of Australia; ex parte WA National Football League [1979] HCA 6; (1979) 143 CLR 190 at 233-234; Uebergang v Australian Wheat Board [1980] HCA 40; (1980) 145 CLR 266 at 294; Attorney-General (Vic); ex rel Black v Commonwealth [1981] HCA 2; (1981) 146 CLR 559 at 578; McGinty v Western Australia [1996] HCA 48; (1996) 70 ALJR 200 at 222. Nor is the distinction between the connotation of a word and its denotation a distinction that is useful only in construing the Constitution. Such a distinction can be seen as informing decisions such as Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327 at 331; Commissioner for Railways (NSW) v Scott [1959] HCA 29; (1959) 102 CLR 392 at 458; Chappel & Co Ltd v Associated Radio Co of Australia Ltd [1925] VicLawRp 46; [1925] VLR 350 at 361; and Wilson v The Commissioner of Stamp Duties (NSW) (1988) 13 NSWLR 77 at 78-79.

43. It may be (and I need express no view on this) that there are some different considerations that apply to the construction of a statute from those that apply to the Constitution and that a court should more easily identify a shift in denotation of the words of the Constitution than in the words of the statute. But whether or not that is so, I do not accept that the denotation of the word "children", when it is used in Part IV of the Administration and Probate Act, can be seen to have changed. As I have said, I do not accept that the material relied on by the respondents does show that there has been any shift in the usage of the word "children", and I do not accept that the attributes signified by the word, its connotation, has changed. Biological connection between the "parent" and the "children" has always been, and still is, central to the meaning of the word "children" when it is used (as it is in Part IV) to identify a relationship with another (in this case the deceased). This is not a case in which some new specific example of a general category has emerged. Thus, it is not a case in which a word of apparently general application such as "gas" can be seen to apply to some newly produced form of that substance (eg liquefied petroleum gas as opposed to coal gas). (Cf Lake Macquarie shire council supra). What is suggested here is that the central element of the definition of the word "children" should be ignored and those who have no biological, or as I have put it, "blood" connection with another, should be regarded as being the children of that other. I do not accept that that is so.

44. In all the circumstances, I need express no view about whether s.7(1) of the Status of Children Act concludes the point against the respondent.

45. I agree with the orders proposed by Brooking JA.

46. The formal orders of the court will therefore be: The appeal is allowed with costs.

47. We set aside the order below and substitute an order as follows: 1. That the preliminary question: "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 deceased?", be answered "no". 2. That the proceeding by originating motion be dismissed. 3. That the defendant's costs of the said proceeding, including the costs of the determination and preliminary question and costs reserved, be paid by the plaintiffs. (Discussion ensued re indemnity certificate).

48. I direct that an indemnity certificate under the Appeal Costs Act be granted to the respondents.