The Estate of MICHAEL JOSEPH BYRNE (also known as MICHAEL JOHN BYRNE) late of 6 Stillwater Way, Edgewater, Western Australia (Dec)

NATASHA RENEE BYRNE (by her next friend JANET LIANE EATON)

Administration Act - Entitlement of a person claiming to be illegitimate to participate in the estate - Turns on own facts

Administration Act, s 12A

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Marshman v Antonia & Ors, unreported; SCt of WA; Library No 970038; 13 February 1997

McComish v Sharpe [2002] WASC 96

McPherson v Seaton, unreported; SCt of WA; Library No 950304; 14 June 1995

1 MASTER SANDERSON: Michael Joseph Byrne (also known as Michael John Byrne) ("the deceased") died on 25 May 2000. On 3 July 2001 the plaintiff was appointed administrator of the deceased's estate. The deceased died intestate. He had married Janet Liane Williams in England on 11 October 1997. He had not made a will either in contemplation of that marriage, nor subsequent to the marriage. The deceased was survived by a daughter, Natasha Renee Byrne, who was born on 25 July 1996. She is the third defendant in these proceedings. On 2 September 2002 Janet Liane Williams married Michael John Eaton and she is now known as Janet Liane Eaton. She is the second defendant to these proceedings.

2 The first defendant claims to be a natural child of the deceased. She was born on 14 September 1962. A copy of the first defendant's birth certificate appears as annexure "SWC5" to the affidavit of Shaun William Conlin, sworn 23 December 2002 and filed in these proceedings. On the birth certificate the first defendant's mother is identified as Coral Morgan.

3 It is clear that Coral Morgan, the first defendant's mother, was married to the deceased on 10 June 1971. The marriage was the subject of a decree nisi made on 8 June 1976 by his Honour Justice Brinsden. A copy of that decree nisi is annexure "SWC6" to Mr Conlin's affidavit. The decree nisi identifies the defendant as the only child of the marriage.

4 By its originating summons issued 24 December 2002, the plaintiff seeks:

"A declaration as to whether the Defendant is entitled under the provisions of section 14A of the Administration Act to participate in the distribution of the residue of the estate of the intestate MICHAEL JOSEPH BYRNE."

5 Section 12A is titled "Entitlement to Participation in Distribution of Intestate Estates". It is in the following terms:

"12A. Entitlement to participation in distribution of intestate estates

(1) Where, after the coming into operation of the Administration Act Amendment Act 1971, any person dies intestate as respects all or any of his property, for the purpose of determining who is entitled to participate in the distribution of that part of his estate to which the intestacy applies the relationship between a child and his parents shall be determined irrespective of whether the parents are or have been married to each other, and all other relationships, whether lineal or collateral, shall be determined accordingly.

(2) In any proceedings where a person relies on a matter of fact made relevant by the provisions of subsection (1) ¾

(a) that fact shall not be taken to be proved unless it is established to the reasonable satisfaction of the Court_;_ and

(b) where the parents are not, or have not been, married to each other, the relationship between a child and his parent, and all other lineal or collateral relationships, shall be recognized only ¾

(i) if parentage is admitted by or established against the parent in his lifetime_;_ and

(ii) where the purpose for which the relationship is to be determined enures for the benefit of the parent, if parentage has been so admitted or established in the lifetime of the child.

(2a) Subsection (2)(b) does not apply to or in respect of a relationship established by the Artificial Conception Act 1985.

(3) The estates of all persons who have died intestate as to the whole or any part thereof before the coming into operation of the Administration Act Amendment Act 1971, shall be distributed in accordance with the enactments and rules of law which would have applied to them if that Act had not been passed.

(4) The estates of all persons who have died intestate as to the whole or any part thereof before the coming into operation of Part 2 of the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 shall be distributed in accordance with the enactments and rules of law which would have applied to them if that Act had not been passed.

6 The problem here arises with respect to s 12A(2). The first defendant's birth certificate does not identify the deceased as her father. There is no evidence at all that the deceased admitted during his lifetime that the first defendant was his daughter. It is true that the decree nisi shows the first defendant as a child of the marriage. This is an issue to which I will return later in these reasons. Despite extensive enquiries by the Public Trustee, no evidence has emerged that the deceased during his lifetime admitted to anyone that the first defendant was his daughter. In his affidavit Mr Conlin sets out the investigations undertaken by the Public Trustee in relation to this issue. The plaintiff has simply drawn a blank.

7 Nor has the plaintiff in pursuing other lines of inquiry, been able to produce any evidence that the first defendant is the child of the deceased. The plaintiff has made enquiries with relatives of the deceased who are resident in the United Kingdom. Nothing has come of those inquiries. It engaged the State Trustees in Victoria as genealogists. Despite this expert assistance, no evidence of paternity emerged. Perhaps the only evidence to support the proposition that the first defendant is the deceased's daughter is a statutory declaration from one Christine West, dated 23 August 2001. This document appears as "SWC11" to the affidavit of Mr Conlin. Ms West describes herself as the deceased's sister. She says that to the best of her knowledge and belief the deceased was the biological father of the first defendant. She gives no basis for that conclusion. In my view her evidence is of little value.

8 The first defendant did file an affidavit dated 29 May 2003. This affidavit makes harrowing reading. It is clear that the relationship between the first defendant and the deceased was an unhappy one. It is unnecessary to canvass all of the material in this affidavit. It is sufficient if I say that there is nothing in this affidavit which establishes that the deceased was the natural father of the first defendant.

9 Before leaving the evidence I should make two other points. First, in an effort to establish the relationship between the first defendant and the deceased, the plaintiff applied for an order that the first defendant make herself available to provide a tissue sample for DNA testing. The first defendant opposed this application and the matter was dealt with by Master Newnes: The Public Trustee v Galvan & Ors [2003] WASC 134. The learned Master concluded that in the face of the first defendant's opposition to the testing procedure, no order should be made. That effectively closed off one avenue available to the plaintiff. Second, the plaintiff has encouraged the first defendant to obtain legal advice and representation on the basis that the cost of such representation would be met from the proceeds of the deceased's estate. The first defendant has declined to take up that offer. As a result, she was unrepresented in these proceedings.

10 Section 12A(1) of the Administration Act gives equal rights to a child to make a claim against an estate of a deceased parent, regardless of the child's legitimacy. Section 12A(2) imposes a high standard of proof in respect of matters of paternity. Section 12A(2)(b) directs that where the parents of the child are not, or have not been married to each other, the paternity of the father shall only be recognised if it is admitted or established against the father in his lifetime. The provisions of s 12A do not address the situation where the child was either conceived or born before a marriage between a mother and a deceased father. The drafting of s 12A(2)(b) raises the question of whether, if the alleged father of the child has at any time been married to the mother of the child, the presumption of paternity arises as a result.

11 Section 18 of the Interpretation Act 1984 directs that the construction that promotes the purpose or object underlying the law shall be preferred to a construction that would not. In Mills v Meeking [1990] HCA 6; (1990) 91 ALR 16 at 31 - 32, Dawson J said that there must be more than one possible construction of legislation before the purposive approach required by the Interpretation Act comes into effect. His Honour also said that modification must also be precisely identifiable as that which is necessary to give effect to the purposes of the Act and be consistent with the wording of the Act. In Re The News Corporation Ltd & Ors (1987) 70 ALR 419 at 421, Bowen CJ observed that where the Court was analysing the construction that would promote the purposes of the Act, it must ascertain and enforce the actual commands of the legislation.

12 McHugh JA (as he then was) in Bermingham v Corrective Services Commissioner of New South Wales (1988) 15 NSWLR 292, observed that the court had the power to read words into a legislative provision if by inadvertence they had been omitted. His Honour laid down the following principles:

1. The Court must know the mischief with which the Act was dealing.

2. The Court must be satisfied that by inadvertence Parliament had overlooked an eventuality which must be dealt with if the purpose of the Act was to be achieved.

3. The Court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.

To those three principles there might also be added the following. In determining what was the purpose of the state it is to be deduced by looking at the statute as a whole. The history of the statute may also be of assistance: see Pambula District Hospital v Herriman (1988) 14 NSWLR 387.

13 The primary purpose of the introduction of s 12A is reasonably clear. The section was introduced into the Act in 1971. It resulted in the impediment of illegitimate children to take under intestacy being removed. In the same year the Wills Act was amended by the introduction of Pt IX which also eliminated the distinction between legitimate and illegitimate children in respect of their ability to take under an estate. Section 31 of the Wills Act directed that the relationship between a child and his father should be determined irrespective of whether the father and the child's mother had married.

14 In 1972 the Inheritance (Family & Dependants Provision) Act, which repealed the Testator's Family Maintenance Act, included a provision giving equal rights to an illegitimate child for provision from his parent's estate. The Act also imposed the requirement that the father of an illegitimate child admit paternity, or that paternity be established during his lifetime.

15 There can be no doubt then that the primary purpose of s 12A was to give illegitimate children the same rights to participate in their deceased parents' estate as legitimate children.

16 The secondary question is whether the legislation intended that the provisions of s 12A(2)(b) reflect the common law presumption of legitimacy if a child was born or conceived in wedlock, or whether the presumption was extended to include children who were born illegitimate but whose parents subsequently married. Whilst the provisions of s 12A(1) introduce the provision that directs that the same rules apply in determining the relationship between a child and his father regardless of whether the parents were married, the provisions of s 12A(2)(b) impose three conditions to be met to establish the paternity of the deceased of illegitimate children. No proof of paternity is required except where the deceased father and the mother are not, or have not, been married to each other. It is clear that the purpose of the Act is to allow illegitimate children to partake in their father's estate if they can persuade the Court that the paternity was admitted or established during the deceased's lifetime. The legislation imposes a high standard of proof. The Court must be "reasonably satisfied" that paternity had been admitted or established for paternity to be proved. It seems then that the legislation recognised the rights of the illegitimate child subject to quite stringent evidentiary requirements.

17 In my view there is no warrant for concluding that the legislature intended that a child of a woman could claim paternity against any man her mother subsequently married. Such a conclusion would be inconsistent with the clear wording of the section and is not, in my view, consistent with the purposes of the Act. Accordingly, the fact that the first defendant's mother married the deceased some time after her birth is not sufficient to allow her to participate in the estate as a child of the deceased.

18 There remains the question of the effect of the decree nisi of dissolution of the marriage between the deceased and the first defendant's mother. Given that the decree describes the first defendant as "a child of the marriage", can that be said to amount to an admission by the deceased that he was the first defendant's natural father? The question of what precisely is meant by the expression "child of the marriage" was considered by Toohey J (as his Honour then was) in Bedford v Bedford (1977) 3 FLR 11,421. His Honour said (at 11,422):

"I am satisfied that the marriage has broken down irretrievably and that a decree nisi should issue. But questions arise in regard to the operation of s 63 of the Family Law Act. The first matter to be determined is whether or not T is a child of the marriage. By reason of the re-enactment of s 5 that took place in 1976 following Russell v Russell, Farrelly v Farrelly (1976) FLC 90-039 the Act draws a distinction between a child of the marriage for what I might describe as general purposes and a child of the marriage for the application of s 63. For the latter purpose a child of either the husband or wife is deemed to be a child of the marriage 'if, at the relevant time, the child was ordinarily a member of the household of the husband and wife'. Section 5(2) par (b) defines 'the relevant time' as 'the time immediately preceding the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately preceding the time when they last separated before the institution of the proceedings for dissolution of marriage".

19 Based upon this analysis of the provisions of the Family Law Act, it would seem that the decree nisi referring to the first defendant as "a child of the marriage" of the first defendant's mother and the deceased meant no more than at the relevant time - that is, prior to the time that the first defendant's mother and the deceased separated - the first defendant was ordinarily a member of the household of the parties. Such a conclusion says nothing about the paternity of the first defendant. More importantly, it cannot be seen as an admission by the deceased that the first defendant was his daughter.

20 In my view, the first defendant does not satisfy the requirements of s 12A of the Act. I am prepared to make a declaration to that effect. I will hear the parties as to the precise form of the declaration and as to costs.