Dehnert v Perpetual Executors & Trustees Association of Australia Ltd [1954] HCA 47; (1954) 91 CLR 177 (14 September 1954)

HIGH COURT OF AUSTRALIA

DEHNERT v. THE PERPETUAL EXECUTORS AND TRUSTEES ASSOCIATION OF AUSTRALIA LTD. [1954] HCA 47; (1954) 91 CLR 177

Testator's Family Maintenance

High Court of Australia
Dixon C.J.(1), McTiernan(2), Webb(3), Fullagar(4) and Kitto(5) JJ.

CATCHWORDS

Testator's Family Maintenance - Testator - Failure of testator to make "adequate provision for the . . . maintenance . . . of the testator's . . . children" - Competence of applicant - Child adopted by testator - Statutory provision that adopted child to "stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock" in respect of maintenance - Costs - Separate representation on appeal of Attorney-General representing charitable beneficiaries - Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483) (Vict.), s. 3 - Adoption of Children Act 1928 (No. 3605) (Vict.), s. 7 (1) (2) (a).

HEARING

Melbourne, 1954, May 26, 27; September 14. 14:9:1954
APPEAL from the Supreme Court of Victoria.

DECISION

September 14.
The following written judgments were delivered:-
DIXON C.J. I have had the advantage of reading the judgment prepared by p186)

2. The words in sub-s. (1) of s. 7 of the Adoption of Children Act 1928 to which for the purpose in hand most importance attaches are "in respect of the same matters . . . the adopted child shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock." Now "the same matters" are "the future custody maintenance and education of the adopted child". The earlier words of the sub-section deal with the rights, duties, obligations and liabilities of the adopter and adopted child with respect to these matters. But the later words to which, as I say, most importance attaches deal with a somewhat different, and in some ways wider conception, namely the position in which with reference to these matters the adopted child stands to the adopter. This distinction is made and the meaning of "the same matters" is shown by a short passage in Lord Atkin's opinion, in which the House concurred, in Coventry Corporation v. Surrey County Council (1935) AC 199 : "It is to be observed that the Act does not put the adopter and the child into the position of natural parent and child for all purposes. But, as to the matters enumerated in sub-s. 1, custody, maintenance and education, it does in the plainest language transfer from the natural parent to the adopter the whole of the rights and obligations that flow from parenthood; and places the child in the same position as though he were the lawful natural child of the adopter" (1935) AC, at p 205 . It should perhaps be added that, so far as "rights duties obligations and liabilities" of adopter and adopted child may be relevant, it must be borne in mind that they need not be rights &c. inter se: they may be rights &c. adversus extraneos. "It must be noted that the rights and obligations referred to are not merely rights and obligations as between father and child": per Lord Atkin (1935) AC, at p 206 . (at p187)

3. With sub-s. (1) of s. 7, thus interpreted, must be read sub-s. (2) which entitles the adopted child "to succeed" to the property of the adopter to the same extent as would have been the case if a child had in fact been a child born to the adopter in lawful wedlock. At the same time the child's "right of succession" to the property of his natural parent is destroyed. The words "succeed" and "succession" are very wide and general and are capable of a flexible application. It seems almost self-evident that no provision in favour of the adopted child could be made out of his natural parent's estate under s. 139 of the Administration and Probate Acts (substituted by No. 4483). The provision would take effect as if the same had been made by a will and codicil of the natural parent: see s. 145(5). Surely the adopted child, if such an order were made, would then have "succeeded" to property of his natural parent, although s. 7 (2) (b) of the Adoption of Children Act 1928 says that he shall not have any right to do so. If it be right, as I think it must be, that an adoption order made under that section put an end to the child's potential claim under s. 139 of the Administration and Probate Acts to a provision out of the estate of either of his natural parents, on the death of the parent, it seems a reasonable corollary that s. 7 (2) (a) includes under the word "succeed" succession to property of the adopter by means of a provision made under s. 139. Now s. 139 takes as the very ground of its operation the fact that a testator leaves a will "without making therein adequate provision for the proper maintenance and support of the testator's widow widower or children". So far as children are concerned "maintenance" is part of the subject matter of "the custody maintenance and education" with respect to which s. 7 of the Adoption of Children Act 1928 in the words of Lord Atkin "places the child in the same position as though he were the lawful natural child of the adopter". To ascertain whether s. 139 of the Administration and Probate Acts affects the adopted child in relation to the deceased adopter, again in the words of Lord Atkin: "it is only necessary to consider whether the statute purports to deal with the rights or obligations of parents or the position of the child in relation to the matters of custody maintenance and education" (1935) AC, at p 206 . It was on this ground that his Lordship regarded an adopted child as a dependent under s. 4 of the Workmen's Compensation Act 1925 (1935) AC, at p 208 . (at p188)

4. I am not disposed to regard sub-s. (1) and sub-s. (2) of s. 7 of the Adoption of Children Act 1928 as presenting separate or alternative questions of interpretation with reference to their effect or operation upon s. 139 of the Administration and Probate Acts. It appears to me that all the foregoing matters combine to show that s. 7 of the former Act provides a general rule with respect to the position of an adopted child taking property on the death of an adopter wide enough to include a statutory power in the court to vary the testamentary dispositions made by the adopter so as to make a provision for the adopted child's maintenance. To interpret s. 7 otherwise would be to mistake its purpose and miss the fact that it is a provision which expresses a principle to be applied generally in the law affecting parent and child, namely that in reference to custody, maintenance and education and the devolution of property, the adopter takes the place of the natural parent. (at p188)

5. I agree that the appeal should be allowed. (at p188)

McTIERNAN J. I concur in the judgments prepared by the Chief Justice and Kitto J. (at p188)

2. In my opinion the appeal should be allowed. (at p188)

WEBB J. I would allow this appeal for the reasons given by the Chief Justice and Kitto J. (at p188)

FULLAGAR J. In this case I have had the advantage of reading what has been written by the Chief Justice and by Kitto J., and I am content to say that I agree. (at p188)

KITTO J. The appellant is an adopted daughter of one Paul Edward Dehnert deceased who will be referred to as the testator, and she appeals against an order of the Supreme Court of Victoria (Hudson A.J.) dismissing her application for provision to be made for her out of the estate of the testator under Pt. V of the Administration and Probate Acts (Vict.). (at p188)

2. On the merits of the case the learned judge was prepared to make an order in the appellant's favour, but he held that she had no locus standi to make the application. For that reason alone he refused to make the order. (at p188)

3. Part V of the Administration and Probate Acts contains the Victorian legislation corresponding with the Testators' Family Maintenance Acts in force in other States. The only persons competent to apply under the provisions of that part are the widow or widower and the children of a testator, and it was as a child of the testator that the appellant made her application. She was not a natural-born child of his, but she had been adopted by him, she said, in early childhood. This was taken in the Supreme Court to mean, and it is not denied on this appeal, that under the provisions of the Adoption of Children Act 1928 (No. 3605) (Vict.) an adoption order had been made under which the appellant was the adopted child and the testator was the adopter. The effect of such an order is prescribed by s. 7 of the Adoption of Children Acts. Until an amending Act (No. 5666) came into force on 1st September 1953 (the date fixed by proclamation under s. 1 (2) of that Act), s. 7 provided (so far as material) that "Upon an adoption order being made, all rights, duties, obligations and liabilities of the parent or parents . . . of the adopted child, in relation to the future custody, maintenance and education of the adopted child . . . shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock, and in respect of the same matters . . . the adopted child shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock". (at p189)

4. The testator died on 19th September 1952, and the appellant instituted her application under Pt. V by a summons issued on 19th May 1953. The hearing did not take place, however, until September 1953, the order now under appeal being made on 20th October 1953. In the meantime the amending Adoption of Children Act of 1953 had come into operation, and it substituted a new section for s. 7. The provisions of the new section need not be set out here. It is enough to say that if they had been in force at the death of the testator the appellant would certainly have been entitled to maintain her application as occupying the position of a child of the testator for the purposes of Pt. V of the Administration and Probate Acts. The respondents, however, contended that the new s. 7 on its true interpretation had not such a retrospective operation as to avail the appellant in this case, and so the learned judge decided. (at p189)

5. His Honour's very careful statement of his reasons for judgment shows that it was not contended before him that the former s. 7 or any other provision contained in the Adoption of Children Act 1928 would entitle the appellant to the benefit of the provisions of Pt. V of the Administration and Probate Acts. Upon consideration, however, I am of opinion that the appellant is entitled to succeed on the original terms of the section. (at p190)

6. It has been contended on behalf of the respondents that the section deals only with the legal rights, duties, obligations and liabilities subsisting in relation to the adopted child during his infancy and the adopter's lifetime. It is true that s. 7 (1935) AC 199 deals first with rights, duties, obligations and liabilities, but the provision which is important for this case is that which is contained in the concluding words of the portion of s. 7 (1935) AC 199 which has been set out above: "in respect of the same matters . . . the adopted child shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock." If "the same matters" were the rights, duties, obligations and liabilities previously referred to, there might be much force in the respondents' contention; but it has been held by the House of Lords, on the construction of an identical provision contained in s. 5 of the Adoption of Children Act, 1926, 16 & 17 Geo. 5, c. 29 (Imp.), that the matters referred to are custody, maintenance and education: Coventry Corporation v. Surrey County Council (1935) AC 199 . "In construing any statute" said Lord Atkin with whom all their Lordships agreed, "in order to ascertain whether it affects adopter or adopted children it is only necessary to consider whether the statute purports to deal with the rights and obligations of parents or the position of a child in relation to the matters of custody, maintenance, or education. If it does the adopter has the same rights and obligations as though he were the natural parent, and the child is in the same position as though he were the legitimate child of the adopters" (1935) AC, at pp 205-206 . Earlier his Lordship had said: "It is to be observed that the Act does not put the adopter and the child into the position of natural parent and child for all purposes. But, as to the matters enumerated in sub-s. 1, custody, maintenance and education, it does in the plainest language transfer from the natural parent to the adopter the whole of the rights and obligations that flow from parenthood; and places the child in the same position as though he were the lawful natural child of the adopter" (1935) AC, at p 205 . (at p190)

7. The provision for the purposes of which it is necessary to decide in the present case whether the appellant is to be considered a child of the testator is s. 139 of the Administration and Probate Acts (substituted for the original s. 139 by Act No. 4483 in 1937). It is in these terms: "If any person (hereinafter in this Part called 'the testator') dies (whether before or after the commencement of the Administration and Probate (Testator's Family Maintenance) Act 1937) leaving a will and without making therein adequate provision for the proper maintenance and support of the testator's widow widower or children the court may in its discretion on application by or on behalf of the said widow widower or children order that such provision as the court thinks fit shall be made out of the estate of the testator for such widow widower or children". (at p191)

8. In this section, "maintenance and support" is a phrase of no wider import than the word "maintenance" as used in the Adoption of Children Act. "Maintenance" alone is used in the analogous English legislation, the Inheritance (Family Provision) Act 1938, 1 & 2 Geo. 6, c. 45. To apply Lord Atkin's test, therefore, s. 139 is a statutory provision purporting to deal with the position of children in relation to the matter of maintenance. This being so, it must be held that an adopted child is in the same position for the purposes of the section as though he were the legitimate child of the adopter. (at p191)

9. The repeal in 1953 of the original s. 7 of the Adoption of Children Act of course did not affect the right which the appellant had acquired under that section or her then pending legal proceeding in respect of that right: Acts Interpretation Act 1928 (Vict.), s. 6 (2). She was therefore entitled to an order for such provision as the court should think fit to make for her out of the testator's estate. She was given by the will an annuity of 5 pounds per week and a legacy of 2,000 pounds if and when she should attain the age of forty years. Hudson J., after a full review of the facts, concluded that if the appellant was a competent applicant there should be an order in her favour making the 2,000 pounds legacy payable immediately and giving her an additional legacy of 4,000 pounds. On the hearing of the appeal all parties were content that such an order should be made in the event of the appellants succeeding. (at p191)

10. In my opinion the appeal should be allowed, the order of the Supreme Court should be discharged (except as to costs), and in lieu thereof an order should be made entitling the appellant to a legacy of 6,000 pounds presently payable instead of her contingent legacy of 2,000 pounds. As regards costs, the appellant and the respondent executors must, of course, have their costs here as well as below out of the estate of the testator. It is not so clear that the Attorney-General should also have his costs of the appeal. His position in the case is analogous to that of a beneficiary, and it is by no means as of course that a beneficiary is allowed his costs of an appeal on which he chooses to be represented separately from the executor. In the Supreme Court, however, the case was regarded as one in which it was proper that the Attorney-General should be separately represented, and in all the circumstances it seems reasonable to take the same view in respect of the appeal. (at p192)

ORDER

Appeal allowed. Discharge order appealed from except as to costs and the certificate for counsel. In lieu thereof order that provision be made out of the estate of the testator Paul Edward Dehnert deceased for the applicant Elsie Marie Dehnert as follows namely that in lieu of the legacy bequeathed by the testator's will to her if and when she shall attain the age of forty years the said applicant be entitled to a legacy of six thousand pounds presently payable and that it be directed that a certified copy of the order be made upon the probate of the will, and further order that the costs of the applicant of her application in the Supreme Court be taxed as between solicitor and client and paid out of the estate of the testator.

Order that the costs of this appeal of the appellant and of the respondents the executors and the Attorney-General and the costs, if any, of the respondent Paul Roy Dehnert be taxed as between solicitor and client and paid out of the estate.