STEPCHILD OR ADOPTED CHILD? IS THERE A DIFFERENCE IN QUEENSLAND? - July 2011

Author: Garbis Kolokossian

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There is immense confusion about the entitlements of a stepchild, that is, the relationship between a child and the partner of that child’s biological mother or father.

The rights of stepchildren and adopted children in Queensland have had a turbulent past. In order for all individuals to understand their entitlements in this area of law, it is necessary to understand the evolution of the area and more importantly, what is now needed to be able to bring forward a claim.

Before 20 June 1997, a stepchild was defined in Section 40 of the Succession Act to mean:

            “A child of that persons spouse who is not a child of the deceased person.”

The quoted compound expression has been authoritatively held in Queensland to exclude a former stepchild of the deceased, that is, one who’s natural parent has pre-deceased the stepparent. This has been reiterated and confirmed in case law throughout history as outlined in the following cases:

Re Burt [1988] 1 Qd R 23 at 34, 35, 29

Re Marstella [1989] 1 Qd R 638 at 646

Re Danes [1989] 2 Qd R 236 at 237

Re Moncton [1996] 2 Qd R 174 (a decision of the Queensland Court of Appeal from which the High Court of Australia refused Special Leave to Appeal on 15 March 1996).

It was not surprising that legislators and the Court took a different approach. Part 4 of the Succession Act (in which Section 41 is located) was amended by Section 78 and Section 79 of the Justice and Other Legislation, (Miscellaneous Provisions) Act 1997 also known as the 1997 Amendments. These amendments come into effect on 20 June 1997 and a direct result of the 1997 Amendments was the fact that it deleted the definition of stepchild, as defined in Section 40 of the Succession Act, and inserted a new section, Section 40A, which defines the meaning of a stepchild as follows:

            S40A

1. A person is a ‘stepchild’ of a deceased person for this part if –
1. The person is the child of the spouse of the deceased person; and
2. A relationship of stepchild and stepparent between the person and the deceased person did not stop under subsection 2.
2. The relationship of stepchild and stepparent stops on the divorce of the deceased person and the stepchild’s parent.
3. To remove any doubt, it is declared that the relationship of stepchild and stepparent does not stop merely because –
1. The stepchild’s parent died before the deceased person and the deceased persons marriage to that parent subsisted when the parent died; or
2. The deceased person remarried after the death of the stepchild’s parent if the deceased person marriage to the parent subsisted when the parent died.

However, the unfortunate circumstances are that the legislative provision mentioned above only operates prospectively. This means that it only applies to circumstances where the deceased (the stepparent) passes away on or after 20 June 1997. This notion has been supported in cases such as Re John (unreported) QSC, 4 November 1998 which was affirmed on Appealin the matter of Pamochini v Jude [2000] 2 Qd R 322:[1999] QCA 444.

As a result of the above legislative provisions, a stepchild of the deceased parent is ineligible to make a claim under s41 of the Succession Act, if the stepchild’s parent (and the spouse of the deceased/stepparent) died before the deceased and before 20 June 1997. In these circumstances, it is the interpretation of the legislation and the common law that a Queensland Court will conclude that the stepchild of a deceased stepparent was not the deceased’s child at the date and time of that individual’s death, in essence, taking away an individual’s eligibility to seek further provisions under the appropriate legislation.

The next main enquiry that is usually raised by a client is the circumstances where the stepchild has been treated and or referred to for all intents and purposes as the deceased’s ‘child’. Unfortunately, this issue has not been authoritatively dealt with by Queensland’s Courts. Nevertheless, the question has come before its estate appellant courts, and there are Statements of Assistance of the High Court of Australia. Even in Popple Lee Rowe, Brooking JA said that the expression ‘children’, as used in s91 of the Act, was a technical meaning and meant ‘issue in the first generation’, or ‘natural children’, not ‘children’ in a wider or ‘popular, loose and flexible’ meaning.

It was further confirmed in the case of Dehnert v Perpetual Executors & Trustees Association of Australia Ltd (1954) 91 CLR 177, High Court Judges Dixon C J and Kitto J expressed the view that ‘children’ in part 5 of the Administration and Probate Testator’s Family Maintenance Act 1937 meant ‘natural children’.

In essence, the broad interpretation of the term ‘children’ does not leave room to interpretation in circumstances where an individual has been treated like a child but not necessarily adopted. In circumstances where a stepchild’s biological parent passed away prior to 20 June 1997, he or she is not eligible, on the interpretation of the case law, as an applicant for further provision under the Succession Act in Queensland and will not be entitled to seek further provisions from the estate of their deceased stepparent.

The 1997 Amendments to the legislation changed all this and allow a stepchild to be classified and considered to be eligible in person for the purposes of seeking further provisions under legislation in circumstances where the stepchild’s biological parent passed away after the abovementioned date. Essentially as long as the biological parent and the stepparent were still in a relationship at the time of the passing of the biological parent then a claim can be brought on the behalf of a stepchild.