ILAN STERNFEIN	Plaintiff
v
JONATHAN BLOOM (WHO IS SUED AS THE EXECUTOR OF THE ESTATE OF MAURICE BRUMER, DECEASED) & ANOR (according to the attached Schedule)	Defendants

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JUDICIAL REGISTRAR:	Englefield JR
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2023
DATE OF JUDGMENT:	20 March 2024
CASE MAY BE CITED AS:	Re Brumer; Sternfein v Bloom & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 121

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FAMILY PROVISION – Application by defendants for summary dismissal – Whether the plaintiff, as a former stepchild, is an eligible person under paragraph (g) of the definition of eligible person in section 90 of the Administration and Probate Act 1958 (Vic) – Elements of paragraph (g) eligibility: substantial duration, belief that deceased was a parent and plaintiff treated as a natural child – Meaning of parent in Administration and Probate Act 1958 (Vic) - Whether a real as opposed to a fanciful prospect that the plaintiff might succeed in establishing eligibility to bring this proceeding – Administration and Probate Act 1958 (Vic) ss 3, 90(c), 90(f), 90(g) – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 17, 32 – Civil Procedure Act 2010 (Vic) ss 62, 63 and 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	K Le Faucheur, of counsel for the plaintiff	Zion Legal
For the Defendant	B Gillies, of counsel for the defendants	TLM Law

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Estate..................................................................................................................................................... 1

Summary of Facts............................................................................................................................... 2

Summary of Submissions................................................................................................................ 3

Summary Judgment Principles....................................................................................................... 4

Statutory Construction Principles.................................................................................................. 6

Paragraph (g) eligibility factors....................................................................................................... 7

Meaning of Parent in the Act........................................................................................................... 8

Text of definition........................................................................................................................... 8
Day to Day Care and Control.................................................................................................... 10
Duration:“a Substantial Period during the Life of the Deceased”..................................... 12
Belief: did the Plaintiff believe that the Deceased was his parent?..................................... 14
Treatment: was the Plaintiff treated as a natural child of the Deceased?........................... 15
Whether step-children may only apply as a ‘stepchild’ and are excluded from asserting eligibility otherwise than as a stepchild........................................................................................... 18

Some Interstate Provisions............................................................................................................. 19

Interest of Justice.............................................................................................................................. 20

Conclusion......................................................................................................................................... 21

JUDICIAL REGISTRAR:

Introduction

The plaintiff applies for provision from the estate of Maurice Brumer (‘deceased’) pursuant to pt IV of the Administration and Probate Act 1958 (Vic) (‘the Act’). The plaintiff’s father died in 1988, when the plaintiff was 10 years old. Between May 1990 and April 1997, the plaintiff’s mother was the deceased’s domestic partner. The plaintiff was 19 years old when the domestic relationship between his mother and the deceased ended. In November 1997, the plaintiff’s mother and the deceased concluded a Family Court property settlement. The plaintiff’s mother died on 11 November 1999. [1]
[1]Affidavit of Ilan Marc Sternfein sworn on 23 August 2023 (‘

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Brumer; Sternfein v Bloom & Anor

Details

AGLC: Re Brumer; Sternfein v Bloom & Anor [2024] VSC 121
Case: [2024] VSC 121
Decision Date: 20 March 2024

CaseChat Overview and Summary

In the matter of Re Brumer; Sternfein v Bloom & Anor, the defendants sought summary dismissal of a family provision application brought by the plaintiff, Sternfein, who claimed against the estates of his deceased stepfather and stepmother. Sternfein argued that he was an eligible person under the definition in section 90 of the Administration and Probate Act 1958 (Vic), specifically paragraph (g), which pertains to former stepchildren who were treated as natural children for a substantial duration and believed the deceased to be their parent. The defendants contested the plaintiff's eligibility and sought to dismiss the application on the grounds that there was no real prospect of the plaintiff succeeding in establishing his eligibility.

The primary legal issue before the court was whether the plaintiff qualified as an eligible person under the relevant statutory provisions. This involved interpreting the term "parent" in the context of the Act and assessing whether there was a real prospect that the plaintiff could establish the required elements for eligibility, including the substantial duration of the relationship, the belief that the deceased was a parent, and the treatment as a natural child. The court also needed to consider the interplay of these statutory provisions with the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Civil Procedure Act 2010 (Vic).

The court determined that there was a real prospect the plaintiff might succeed in establishing his eligibility as a former stepchild under the Act. The court found that the relationship between the plaintiff and the deceased stepfather had lasted for a substantial duration, and the plaintiff had genuinely believed the deceased to be his parent, being treated as a natural child. This interpretation aligned with the statutory definition and did not contravene the Charter. Consequently, the court denied the defendants' application for summary dismissal, allowing the plaintiff's application to proceed. The court's decision was based on a thorough analysis of the statutory language and the specific facts of the case, ensuring that the plaintiff's potential eligibility was not prematurely dismissed.

Orders