Re Brumer; Sternfein v Bloom & Anor
[2024] VSC 121
•20 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2023 00814
IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and –
IN THE MATTER of the Will and Estate of MAURICE BRUMER, deceased
BETWEEN:
| 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 (‘Plaintiff’s affidavit') [35].
The plaintiff relies on paragraph (g) of the definition of ‘eligible person’ in s 90 of the Act (‘paragraph (g) eligibility’) to make this application for provision, which reads:
a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d);[2]
[2]The definition of eligible person in paragraph (d) of s 90 of the Administration and Probate Act 1958 (Vic) (‘the Act’) is essentially the same as (g) but is limited to persons who were, at the time of a deceased’s death, disabled, full time students aged under 25 or minors. This split arises as an additional mandatory consideration is imposed on applications by fully capable adults under s 91(4)(c) of the Act.
Importantly, the plaintiff also relies on the definition of ‘parent’ in s 3 of the Act:
parent of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident;
The defendants seek summary judgment on the basis that the plaintiff’s claim has no real prospect of success due to ineligibility.[3]
[3]Civil Procedure Act 2010 (Vic) ss 62 – 63.
For the reasons that follow, I will dismiss the defendants’ application for summary judgment.
Estate
The deceased died on 16 July 2022, leaving two adult children.
By his Will, made on 23 June 2022, the deceased left his net estate to a trust to be established and known as the ‘Brumer Trust’, to fund scientific research, academic literature, publicity, teaching or lobbying initiatives on an annual basis to achieve certain objectives relating to myopia (an ophthalmic disorder). No provision was made for his children or any other individual.
Clause 10 of the Will reads:
I DECLARE that I have carefully considered the breadth and scope of my assets and the need to make proper provision for those persons for whom I have a responsibility to make provision. Accordingly, I have made no provision for my sons, MARCUS and DAVID, for the reasons set out in a letter to be held by my solicitors together with this my Will.
The defendants obtained probate of the Will on 5 September 2022, filing an inventory showing the estate was valued at approximately $2.6 million.
Both of the deceased’s children have issued provision claims under pt IV of the Act, which are presently awaiting the outcome of this summary judgment application, before commencing the usual procedural steps toward finalisation of those proceedings.
Summary of Facts
The central chronology is already summarised at paragraph 1 of this judgment. However, it is necessary to expand on this slightly. All summarised facts are derived from the plaintiff’s affidavit in support and the submissions filed in the proceeding.[4] For the purposes of this summary judgment application, the plaintiff’s evidence will be treated as accepted and taken at its highest.[5]
[4]Plaintiff’s affidavit (n 1); Plaintiff’s outline of submissions dated 13 November 2023; Defendants’ outline of submissions dated 10 October and 22 November 2023.
[5]Transcript of Proceedings (Supreme Court of Victoria S ECI 2023 00814, Englefield JR, 30 November 2023) 8 [3] – [10]; Veniou v Equity Trustees Ltd [2018] VSC 832 [3]; Dunn v Perpetual Trustee Co Ltd [2021] VSC 755 [17].
The plaintiff resided with the deceased from the age of 12 to the age of 19, in the context of the domestic relationship between his mother and the deceased. The deceased was actively involved in the plaintiff’s school, sport and social activities. The deceased ‘disciplined’ the plaintiff. The deceased took on an important role as significant male relative of the plaintiff in a religious ceremony.
The plaintiff had no contact with the deceased from the end of his mother’s relationship with the deceased in 1997 until 2013.
In 2013, the plaintiff had been living in Canberra for some years when the deceased re-connected with the plaintiff via ‘Facebook’, an online social media platform.
After reconnection, they went on to establish a ‘solid relationship.’[6] The plaintiff took his two children to visit the deceased in Melbourne when they were aged six and eight. The deceased ‘adored’ the plaintiff’s children, but could not attend their Bar and Bat Mitzva, a religious ceremony, in Sydney due to COVID restrictions. At times, the deceased referred to the plaintiff as his ‘son.’[7] For example, in 2017, when the plaintiff secured new employment, the deceased expressed pride in the plaintiff including by referring to the plaintiff as ‘son’.
[6]Plaintiff’s affidavit (n 1) [43].
[7]Ibid [45].
The plaintiff and the deceased remained in contact by telephone and via Facebook from 2013 until the deceased’s death in 2022.
Summary of Submissions
The defendants give three key basis for their application:[8]
[8]Defendants’ outline of submissions dated 10 October 2023 [21].
(a) the absence of any evidence that the plaintiff believed the deceased was his parent, expanding on this point by reference to ‘natural’ parent or ‘natural’ child;
(b) even if the plaintiff held that belief, he did not do so for a substantial period during the life of the deceased, submitting that seven years within the life of the deceased (which spanned seventy-seven years) is not substantial; and
(c) on a proper reading of ‘s 90(g)’ of the Act, it does not include stepchildren. Rather, it is for those who, for one reason or another, thought they were the child of the deceased.
The plaintiff submits that paragraph (g) eligibility is not confined to circumstances where the plaintiff believed the deceased was a biological parent. It may extend to non-biological parental relationships. As the plaintiff was in the deceased’s care and control, the deceased was a parent for the purposes of the Act. The plaintiff knew this. That knowledge gives rise to the necessary belief.
Further, the plaintiff submits that the deceased treated the plaintiff as a natural child for a ‘substantial’ period of the deceased’s life. A substantial period of the deceased’s life may be satisfied by a relationship being ‘important’ or happening at a notable part of a person’s life.
Finally, the plaintiff submits that a former stepchild can satisfy the criteria of paragraph (g) eligibility.
Summary Judgment Principles
Summary judgment is available under s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) where a claim has no real prospect of success. A ‘real prospect’ is more than a ‘fanciful chance.’[9] Power to summarily dismiss should be exercised with caution,[10] but consistently with the Court’s own obligations to give effect to the overarching purposes of the CPA, including the duty to avoid unnecessary costs and delay. [11]
[9]Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 [29], [35(a)].
[10]Ibid, [40] [35(d)].
[11]Ibid, [41] (Neave JA).
Section 64 of the CPA does permit the continuation of a proceeding despite it having no real prospect of success if the Court is satisfied that:
(a) it is in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
Additional caution is sometimes necessary when summarily dismissing family provision claims, as the cases usually involve a significant degree of judicial discretion, which generally weighs against summary judgment.[12] Nonetheless, summary judgment must be given in a family provision claim, where it has no real prospect of a favourable exercise of discretion, or is ‘bound to fail’.[13]
[12]See Warren v McKnight (1996) 40 NSWLR 390, 396 (Hodgson J) (‘Warren’); El-Zaouk v Draybi [2010] NSWSC 1001 [16] – [25], [28], [32] (Hallen AsJ); Wolff v Deavin [2012] NSWSC 1315, [35-8] (Macready AsJ) (‘Wolff’); Jackson v Newns [2011] VSC 32 [11] (Mukhtar AsJ) (‘Jackson’); IMO the Will and Estate of William James Milburn (deceased) [2014] VSC 229 [34] (Zammit AsJ).
[13]Re Rattle; O’Neil; v Equity Trustees Ltd [2019] VSC 565 [58].
However, this application involves a statutory interpretation which, although arising in the context of a family provision claim, really involves a question of law rather than a discretionary determination. Summary judgment will be ordered more readily where the issue involves a pure question of law rather than where there is a disputed question of fact.[14]
[14]Re Demediuk [2016] VSC 587 [18] (McMillan J), citing Mutton v Baker [2014] VSCA 43 [19] (Santamaria JA).
On the other hand, there are two elements of this application that may give rise to some additional caution. First, as noted in Re Meuleman,[15] where a novel issue connected to legislative change arises, additional caution may be warranted. Caution must be exercised not to stifle the development of the law by summarily rejecting a novel claim.[16] Paragraph (g) of the definition of eligible person was introduced by amendment[17] and has been subject of only one judicial determination.[18] Second, there may be disputes of fact in respect to the deceased’s role in the plaintiff’s life while the plaintiff resided with the deceased. The nature and extent of this role is crucial to the determination as to how the Act, as interpreted, will be applied in this proceeding.
[15]Re Meuleman; Quminakelo v Amidzic [2020] VSC 376 [25].
[16]Hesse v Hardie [2023] WASCA 173 [55]; Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 18 WAR 126 , 188 – 189, cited with approval in Gunns Ltd v Alishah (2009) 19 Tas R 38 [23].
[17]Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), commencing for deaths occurring on or after 1 January 2015.
[18]Innes-Irons v Forrest [2016] VSC 782.
Statutory Construction Principles
In order to answer the question of whether or not the plaintiff has a real prospect of establishing paragraph (g) eligibility to claim family provision from this estate, I must first construe that paragraph in accordance with established principles.
The Interpretation of Legislation Act 1984 (Vic) requires that, in interpreting an Act, a construction that promotes its purpose or underlying object must be preferred.[19] That is, as the High Court has repeatedly told us, the process starts with the actual text of the statute, but that text is considered in light of the context and purpose of the statue or particular provision.[20] A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.[21]
[19]Interpretation of Legislation Act 1984 (Vic) s 35(a).
[20]Dunn v Perpetual [2021] VSC 755, per Moore J at [50], citing Verraty Pty Ltd v Richmond Football Club Limited [2020] VSCA 267.
[21]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ).
The plaintiff’s submissions that family provision legislation is remedial in character must be accepted.[22] The ‘evident purpose’ of pt IV of the Act is to place the assets of the deceased at the ‘disposal of the court’ to provide for ‘the nominated dependants’ of the deceased (emphasis added).[23] That is, the benefit of pt IV of the Act is only for an eligible person. If the plaintiff is not eligible, the general remedial character of pt IV of the Act is irrelevant.
[22]Holmes v Permanent Trustee Co of New South Wales (1932) 47 CLR 113, 119 (per Rich J, Evatt and McTiernan JJ agreeing).
[23]Easterbrook v Young (1977) 136 CLR 308, 315 (per Barwick CJ, Mason and Murphy JJ); Barns v Barns (2003) 214 CLR 169, [42] – [44] (per Gummow and Hayne JJ).
Further, while the overall purpose of pt IV of the Act may be remedial, the particular purpose of each provision must be identified.[24] Eligibility under the Act is a question of fact and is not part of the discretionary exercise of jurisdiction under the Act to make provision from an estate for an applicant. As noted by Derham AsJ in Bail v Scott-McKenzie (‘Bail’),[25] the purpose of the legislative requirement for eligibility as a prerequisite to an order for provision is limiting.[26] The categories of eligible person set out in the Act restricts the persons who have the right to access the remedy created in the Act. Therefore, the requirement to give a purposive interpretation to family provision legislation generally, is qualified when dealing with eligibility specifically.[27] In Bail, Derham AsJ cited with approval the following passage from Re Burt:[28]
The answer is to be found as a matter of construction. The fact that the legislation is remedial in character and therefore to be construed beneficially does not call for artificial extensions of the category of persons who are prescribed as eligible for the benefit. The task is to ascertain who has been given the right to apply.
[24]ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1.
[25]Bail v Scott-McKenzie [2016] VSC 563. A history of family provision legislation in Victoria is set out in [56] – [82].
[26]Ibid [79].
[27]Ibid [74] citing Popple v Rowe and Ors [1998] 1 VR 651.
[28]Re Burt [1988] 1 Qd R 23, 32.
Finally, s 32 of the Charter of Human Rights and Responsibilities Act2006 (Vic) (‘Charter’) requires me to interpret paragraph (g), as far as possible consistent with its purpose, in a way that is compatible with human rights. This does not displace the ordinary process of statutory construction. Rather, the Charter forms part of the context in which a statute is to be construed.[29] Section 32(1) ‘operates on constructional choices which the language of a statute permits’.[30]
[29]Momcilovic v The Queen (2011) 245 CLR 1 [51] (French CJ), [170] (Gummow J, Hayne J agreeing), [565] (Crennan and Kiefel JJ), [684] (Bell J).
[30]Ibid [50] (French CJ).
Paragraph (g) eligibility factors
Turning to the text of the Act, to establish paragraph (g) eligibility, it is necessary for the plaintiff to show that ‘for a substantial period during the life of the deceased’ (‘duration factor’):
(a) the plaintiff believed the deceased was a ‘parent’ of the plaintiff (belief factor); and
(b) the plaintiff was treated as a natural child of the deceased (treatment factor).
First, I will consider the meaning of the word parent in the Act, before dealing with the factors of duration, belief and treatment necessary to establish paragraph (g) eligibility.
Meaning of Parent in the Act
Text of definition
Section 3 of the Act commences “[i]n this Act unless inconsistent with the context or subject-matter-” prior to setting out various definitions, including:
parent of a child includes a person who has day to day care and control of te child and with whom the child is ordinarily resident;
The definition of parent is inclusive and other persons may be parents within the meaning of the Act. This judgment is concerned only with the concept of a care-giving, residential parent, in the sense that such a person has day to day care and control of a child who ordinarily resides with them.
A care-giving, residential parent requires no biological or genetic relationship with their child to come within the definition. For decades, the definition of parent has been expanding in many areas of Australian law.[31] While it is only fifty years ago that the concept ‘illegitimate’ or ‘bastard’ children was removed by statute in this State,[32] much has changed in society and in the law since then. As observed at [29] by the plurality of the High Court in Masson v Parsons[33] in respect to the meaning of parent in the Family Law Act 1974 (Cth):
In In re G (Children), Baroness Hale of Richmond observed in relation to comparable English legislation that, according to English contemporary conceptions of parenthood, ” [t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of ”parent” in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of ”parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold. (citations omitted)[34]
[31]See for example, Status of Children Act 1974 (Vic) s 13.
[32]Section 3 of the Status of Children Act 1974 (Vic); see also pejorative language of the eighteenth century cited in Magill v Magill (2006) 226 CLR 551 per Gummow, Kirby and Crennan JJ at 54.
[33](2019) 266 CLR 554 per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.
[34]Ibid [29] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.
The definition of ‘parent’ in s 3 of the Act was inserted by Statute Law Amendment (Relationships) Act2001 (Vic), which had the object of recognising:
…the rights and obligations of partners in domestic relationships where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner.[35]
[35]Section 1(2) of Statute Law Amendment (Relationships) Act 2001.
This amending Act also inserted a new definition of ‘domestic partner’ into the Act, which included same sex relationships.
By the definition, a care-giving, residential parent is a parent in the Act, unless inconsistent with the context or subject-matter. There is no inconsistency. Indeed, the scope of paragraph (g) eligibility expressly includes non-genetic parents, as there need only be a belief and treatment, not actuality. Further, defined words in a statute ought have their defined meanings, unless contrary intention is shown.[36] The purpose of a definition is to aid construction,[37] not to add another layer of complexity by introducing a decision whether or not to apply the definition. That is, the definition is to be applied by default.
[36]See Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 10th Ed, 2014) [6.2], [6.17].
[37]Kelly v R (2004) 218 CLR 216 [103] per McHugh J.
The Charter provides that families are the fundamental group unit of society which are entitled to protection by society and the State.[38] Family is not defined in the Charter. However, it cannot be contentious that ‘family’ includes parent and child relationships. An interpretation that is compatible with human rights will protect different forms of family, including the succession law rights arising from a psychological child/parent relationship.
[38]Section 17(1) Charter of Human Rights and Responsibilities Act2006 (Vic).
Day to Day Care and Control
The requirement for ‘day to day care and control,’ denotes a minor dependent child or an adult person under disability. A capable adult may reside with another person, but a relationship of parent and child between them under this definition may not arise, due to the lack of day to day care and control of that adult by the other person.
Providing day to day care seems straightforward enough, but the concept of parental control may be slightly confronting to modern sensibilities. Nonetheless day to day control is an essential element of the definition. Providing supervision (or control) protects from harm. This ranges from the simple and immediate harm, like sharp or hot things in the kitchen, to the complex and on-going harm of failing to meet full human potential. A parent will guard against such long term harm by providing the highest possible quality of education, socialisation, health care and instillation of values. In doing so, the parent is providing day to day control of those aspects of the child’s life, in the best interests of that child, for the short and long term benefit of that child. Indeed, failing to provide proper day to day care and control may result in the State stepping in via child protection or adult guardianship mechanisms. It is a basic responsibility of a parent.
On the other hand, a ‘babysitter’ might care for a child in their home and in doing so provides short term care and control over the child in a residential setting, but is unlikely to be bothered with long term control. The continuous effort of providing day to day care and control of a child in that child’s short and long term interests is the behaviour of a parent.
The Act does not require skilful parenting. A plaintiff ought not be excluded from eligibility on the basis of poor parenting, or they suffer unfairly twice. First, when failed by a person with responsibility to protect them. Second, when such a failure is relied on to deny eligibility that would be open had a deceased person fulfilled their parental duties. By analogy, not all domestic or de facto relationships are happy and harmonious, but this does not prevent a party to the relationship establishing on proper evidence that the domestic relationship existed.
Interestingly, the moral duty of a parent to provide financially for their child is absent from the definition, although providing residential care and control to a minor child or a disabled adult requires financial sacrifice, for example, by greater household expenditure. As evidence of financial support is not required, a care giving, residential parent may be financially dependent on their child and remain within the definition.
The plaintiff’s material shows that he resided with the deceased from the age of 12 years to the age of 19 years, which would satisfy the residential factor of the definition of parent. However, did day to day care and control of the plaintiff by the deceased continue into the plaintiff’s early adulthood, or did it cease when the plaintiff became independent due to maturity?
Legally, decision making power (or control) shifts as the teenager matures. For example, in 2024, a ‘mature minor’ can consent to medical treatment without consent of their parent or ‘person with parental responsibility.’ This is confirmed by the ability of a child, once they turn 15 years old, to obtain their own Medicare card and, from the age of 14, families cannot access a child’s medical records without permission of the child.[39] A mature teenager can prepare their own food, dress themselves, operate bank accounts[40] and work to support themselves, if necessary. An independent 16 year old can access social security benefits via Centrelink, if unemployed or studying. On the other hand, it is illegal in Victoria to tattoo a person aged under 18, even with parental consent.[41]
[39] years, accessed 9 February 2024.
[40]From the age of 14 years.
[41]Section 42 of the Summary Offences Act 1966 (Vic).
Therefore, can it be said that a mature teenager may submit to parental guidance as to education, health and lifestyle, as a result of choice exercised by that teenager, rather than the exertion of day to day control over the teenager by their parent? Equally, as a teenager matures, does parental responsibility lift so that providing care and accommodation to that teenager becomes a choice?
All of this suggests that a turning point may be reached, perhaps somewhere between the age of 14 and 18. Alternatively, parental day to day care and control may taper out gradually, as a capable teenager gains independence and autonomy.
The plaintiff’s material shows that during the time he was at High School, the deceased actively involved himself in the plaintiff’s schooling, tertiary education choices, performances of school plays, facilitated tennis games and provided transport to the school formal. The plaintiff secured his first employment in the deceased’s optometry practice, which ultimately influenced the plaintiff to pursue a career as an Optical Dispenser. More particularly for the purposes of this judgment, the deceased “disciplined” the plaintiff during this period, albeit in a manner now criticised by the plaintiff. The plaintiff describes being subject to “extreme forms of discipline” at the hands of the deceased, including what was called a “food crisis.”[42]
[42]Plaintiff’s affidavit (n 1) [22] – [23].
I am satisfied that the plaintiff has a real prospect of establishing the deceased was a care giving, residential parent of the plaintiff from the time the plaintiff was 12 years old, until the point at which plaintiff had become independent of the deceased’s care and control by maturity. That is, during this time, the deceased was a parent of the plaintiff for the purposes of the Act.
On the other hand, I am satisfied there is no real prospect that the plaintiff could establish the deceased had day to day care and control of the plaintiff at the ages of 18 or 19 years. Therefore, from this time, the deceased ceased to be a care giving residential parent for the purposes of the Act.
The point of transition is a matter of evidence at trial.
Duration: “a Substantial Period during the Life of the Deceased”
The defendants submitted the duration factor in paragraph (g) eligibility is linked to the duration of the deceased’s life. That is, a paragraph (g) relationship of parent/child of 10 years’ duration is a more substantial period if a deceased person dies at 50 years of age, being roughly a third of the deceased’s adulthood, than if the deceased lived to 80 or 90 years of age or beyond. This treats the text as reading ‘a substantial period of the deceased’s life’ instead of the actual words of the paragraph which are ‘a substantial period during the deceased’s life’ (emphasis added).
As the text reveals, the relevant ‘substantial period’ must occur during the lifetime of the deceased. If, after a person dies, another person forms the belief that the deceased person was their parent, it will not suffice. Equally, the treatment as a natural child must occur during the lifetime of the deceased. For example, a baby born after the death of another person, who forms the belief that the deceased person was their parent and is treated by the deceased’s relatives as the deceased’s natural child, would not be eligible under paragraph (g) as the belief and the treatment are posthumous. In this regard, the drafting reflects s7(1)(b) of the Status of Children Act1974 (Vic), which requires recognition of paternity in the lifetime of a deceased parent (or deceased child, as the case may be). In this proceeding, as the belief and treatment relied upon are said to have occurred during the deceased’s lifetime, this aspect of the duration of the relationship is uncontentious.
As noted above, there is some uncertainty as to the duration of the relationship of parent/child between the deceased and the plaintiff. If it ceased on adulthood, the relationship would have continued for approximately six years. If it ceased at the end of the plaintiff’s High School years, it may be five years or six years or so. If it is established that the plaintiff was a mature teenager at age 14 or 15, then the duration is only two or three years. A paragraph (g) parent/child relationship which exists for a few weeks or months may be too insubstantial a period. Even a year or eighteen months may lack the necessary duration necessary to create legal rights and duties under the Act. However, I am satisfied that the plaintiff has a real prospect of establishing at trial that the deceased was his parent within the meaning of the Act for more than two or three years and potentially five or six years. Is this a substantial period during the life of the deceased?
A number of statutory provisions deal with the establishment of another family relationship, de facto or domestic spouses, the existence of which also creates serious legal rights and responsibilities. Throughout Australia, including in Commonwealth legislation, for various purposes, a domestic or de facto spousal relationship is formed by the existence of various factors on a continuous basis, sometimes immediately, but usually requiring at least two years and sometimes three years duration to satisfy the particular definition. Generally, this duration is shortened if a child is born to the relationship, reflecting the significance of undertaking parental responsibilities. By analogy with these provisions, two or three years may be considered an equally ‘substantial’ period for the purposes of the duration factor of paragraph (g) eligibility.
Further, two years may be a substantial period in the life of a minor dependent child. Certainly, six years is a substantial part of any childhood. If it is accepted that the relationship of care-giving, residential parent/child has a natural ending point, there is a maximum duration of say, 16 to 18 years, in the absence of disability. As the plaintiff was already 12 years old when the relationship formed, the duration is naturally foreshortened. If the plaintiff establishes a duration of six years, the deceased would have been his parent for one third of his childhood.
I am satisfied that the plaintiff has a real prospect of satisfying the duration factor of paragraph (g) eligibility.
Belief: did the Plaintiff believe that the Deceased was his parent?
The plaintiff did not ever believe the deceased was his genetic parent. The plaintiff knew the deceased was in a domestic relationship with his mother, which today creates a stepchild/step-parent relationship between the plaintiff and the deceased for the purposes of the Act.
The defendants submit the plaintiff does not give evidence of holding any belief that the deceased was his parent and merely sets out his evidence of the nature and extent of the relationship. The plaintiff submits that he ‘implicitly believed that the deceased was a person in day to day care and control of the plaintiff when he was a child’ and that knowledge implies belief.
In Innes-Irons, the two plaintiffs, who were adopted at around 10 years of age in the 1970s, sought provision from the estate of their genetic father relying on paragraph (g) eligibility, as the Adoption Act1984 (Vic) barred them from claiming as his children. In that case, an unsuccessful summary dismissal application was made on the basis that the plaintiffs were excluded from paragraph (g) because they were the deceased’s ‘natural children’. That is, it was argued that an absence of a genetic relationship was a precursor to the necessary belief required by paragraph (g), as the belief needed to be mistaken. Derham AsJ found that the fact that the plaintiffs in that case knew that the deceased was their genetic parent ‘merely results in them being correct in their belief.’[43] That is, the plaintiffs knew and so believed that the deceased was their genetic parent.
[43]Innes-Irons (n 18) [47].
On the same basis in this case, knowledge that the deceased was a care giving residential parent satisfies the belief factor required to establish paragraph (g) eligibility.[44] Such knowledge simply means that the belief is true. [45] Paragraph (g) eligibility is open to persons who have an incorrect belief that the deceased was a parent, but not restricted to those persons.
[44]Ibid.
[45]Ibid.
I am satisfied that the plaintiff has a real prospect of satisfying the belief factor of paragraph (g) eligibility.
Treatment: was the Plaintiff treated as a natural child of the Deceased?
In some cases, it might be the treatment as a natural child that creates a belief in a plaintiff that the deceased was their parent. For example, a child born to a young teenager who is passed off as the teenager’s parents’ child. Or, for a second example, a child born as a result of an ‘extra marital’ affair who is passed off as the child of their mother’s husband.[46] In such examples, the treatment as a ‘natural’ child includes misleading the child (and as many of the rest of the world as possible) as to the child’s genetic parentage.
[46]Magill v Magill (n 32) provides an example of such situation.
The essence of the defendants’ submissions is that paragraph (g) eligibility is restricted to situations where the plaintiff has been treated as a natural child, but the plaintiff is not a natural child, such as the examples above. Therefore, the defendants argue, as the plaintiff has no real prospect of succeeding in establishing that he was treated as a natural child of the deceased, the plaintiff is ineligible and his claim must be dismissed.
For the defendants’ interpretation to succeed, there is a need to imply additional words, similar to those rejected by His Honour Associate Justice Derham in Innes-Irons in [46]:
As I have said, in order to give to s 90(g) of the Act the meaning advanced by the defendant, it is necessary to read into the provision additional words, namely, that ‘the person was treated as if the person was a natural child of the deceased.’ Treated ‘as’ a natural child of the deceased and treated ‘as if’ the natural child of the deceased appear to be different propositions. Treating someone ‘as’ a natural child has a wider meaning than treating someone ‘as if’ they were a natural child. The latter may exclude those persons who are in fact the deceased’s natural children.
The doctrine of precedent applies differently to legislative interpretation. Each judicial officer must construe the statutory text, not the words of earlier decisions. For this reason, a court is not bound by submissions on interpretation.[47] This approach may be distinguished from legal concepts developed in the common law, which are to found only in the words of earlier decisions. Nonetheless, earlier decisions interpreting the same or similar provision have strong persuasive authority. On this basis, I consider Innes-Irons is so strongly persuasive that for the purposes of a summary dismissal application, I am bound to apply it.
[47]Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 per McGarvie J at 547.
Further, requiring the plaintiff to show that he was treated ‘as if’ he were the natural (or genetic) child of the deceased, involves implying those words into the Act. Implying words into a statute is controversial. In the absence of necessity it is the ‘wrong thing to do.’[48]
[48]Thompson v Goold & Co [1910] AC 409 at 420, per Lord Mersey.
There is nothing in the explanatory memorandum to assist me in the interpreting paragraph (g) eligibility.[49] As is the case with statutory construction generally, the statutory text is the surest guide to Parliament's intention. The inclusion of persons who have been treated as a natural child of the deceased for a substantial period as eligible persons in the Act, on an equal footing with children and step-children, and the plain reading of the paragraph, supports the plaintiff’s interpretation.
[49]Innes-Irons (n 18) [52] – [61].
The treatment factor may be interpreted as including a particular type of treatment, that is parental care, rather than a particular type of child, that is a natural child. To treat another person as a ‘natural’ child can be interpreted as proving care and control for the immediate and long-term needs of a dependent minor or disabled adult for a substantial period. For example, during a period of temporary care, a young child may have their immediate needs met, but may not be treated as a ‘natural’ child. To treat as a natural child may include circumstances of a long term commitment to that child’s future development, including indirect care like financing a household of which the child is a member.
This interpretation will not ‘open the floodgates.’ The requirements for a substantial period, day to day care and control and a common residence, limit the potential psychological family members who may claim via paragraph (g) eligibility to a very close, strongly connected group.
This does not mean that a person who holds an incorrect belief that the deceased was their genetic parent and is treated as the deceased’s genetic child is ineligible. Equally, a genetic child who has been adopted may establish paragraph (g) eligibility. This simply means that a psychological child of a deceased may also satisfy this factor, if they establish that they were treated as a natural child in the sense of receiving parental care.
I note that there is an important variation in the treatment factor of the paragraph (d) of the definition of eligible person in section 90 of the Act, which is essentially the same as paragraph (g) eligibility, but deals with plaintiffs who are, at the time of the death of the deceased, either under the age 18 years, full time students aged between 18 and 25 years or disabled. Paragraph (d) eligibility requires that it be the deceased who treats the plaintiff as a natural child. This requirement is absent in paragraph (g). This difference has no relevance in this proceeding, as the plaintiff here must first establish the deceased was care-giving, residential parent, which necessarily also shows the relevant treatment originated from the deceased. However, it may be significant in other claims.
I find that the plaintiff has a real prospect of satisfying the treatment factor.
Whether step-children may only apply as a ‘stepchild’ and are excluded from asserting eligibility otherwise than as a stepchild.
The defendants also submits that paragraph (g) eligibility is designed to ‘capture’ people other than children and step-children, who are eligible under other paragraphs of the definition of eligible person in s 90 of the Act.[50] Of course, the plaintiff is ineligible as a stepchild, as the relationship between the deceased and his mother ended by separation, not death.[51] The defendants say that this is the intention of the Act. That is, if a plaintiff was a stepchild but is ineligible, they cannot claim paragraph (g) eligibility even if they otherwise appear to satisfy its requirements.
[50]Paragraphs (c) and (f) of the definition of eligible person in s 90 of the Act.
[51]Bail (n 25) [6].
This may be a reference to the maxim of statutory construction expressio unius est exclusio alterius or ‘an express reference to one matter indicates that other matters are excluded’. It could also be an application of the maxim expresum facit cessar tactium or ‘express inclusion of one thing implies exclusion of others.’ Such maxims must be applied with extreme caution and only when the principle relied on can be discerned in the statutory text.[52] Derham AsJ found that the text of the various definitions of eligible person in s 90 of the Act does not reveal any intention that genetic children are excluded from paragraph (g) eligibility in Innes-Irons. I am satisfied of a real prospect that the plaintiff may succeed in arguing that such maxims cannot be relied on to impliedly exclude former step-children from paragraph (g) eligibility.
[52]Innes-Irons (n 18), Associate Justice Derham at [40] – [42].
Some Interstate Provisions
In New South Wales, since the early 1980s, persons who were, at any time, partly or wholly dependent on the deceased and a member of the household of which the deceased was a member are eligible to seek family provision from the deceased’s estate.[53] This includes former step-children who satisfy the residence and the dependency requirement, although step-children are not a category of applicant in that State. That is, for over four decades, in New South Wales, plaintiffs have been able to establish a claim to provision, based on a family relationship which came into being other than genetically.[54] The plaintiff in this proceeding would be eligible in New South Wales.
[53]Succession Act 2006 (NSW) s.57(1)(e) (‘Succession Act’).
[54]For some of the legislative history see Spata v Tumino (2018) 95 NSWLR 706.
On the other hand, a stepchild is eligible to claim in Victoria, without ever having been a member of the deceased’s household or dependent. Such a stepchild is ineligible in New South Wales. [55]
[55]Succession Act (n 53) s 59(1)(b).
Interestingly, New South Wales, added to the definition of child, rather than parent, in its comparable family provision legislation. Now, a child of a deceased person for the purposes of its family provision legislation includes, among other expanded definitions:
… a child for whose long-term welfare both parties [to a domestic relationship] have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act1998)”. [56]
[56]Ibid, s 57(2)(e).
Queensland, on the other hand, currently provides an example of a more restrictive regime. The relationship of stepchild arising in the context of a domestic relationship between a genetic parent and the deceased (as opposed to marriage) for the purposes of family provision claim eligibility was only expressly included in 2017.[57] There is no ‘catch-all’ ‘member of the household’ category to extend eligibility to persons such as the plaintiff in this proceeding. In Eatts v Gundy,[58] the plaintiff had been given by his biological mother to her sister to raise as the sister’s son according to Aboriginal cultural traditions. They formed a strong and enduring mother and son relationship, into the son’s adulthood, the son’s parenthood and the mother’s old age. When the adoptive mother died without leaving a will, the plaintiff was excluded from benefit as the Queensland Court of Appeal found that the words “child” and “issue” did not capture cultural relationships, only “blood” relationships.
[57]By amendment of s 40A of the Succession Act 1981 (Qld) by s 247 of the Court and Civil Legislation Amendment Act 2017 (Qld).
[58][2015] 2 Qd R 559.
The Queensland Chief Justice, speaking extra-judicially, said unambiguously that the construction of “child” in the Succession Act 1981 (Qld), as confirmed in Eatts v Gundy, reflects a social conservatism, for want of a better term, and lacks contemporary relevance.[59] A review of Queensland’s succession laws, presently underway, is hoped to result in amendments more in keeping with ‘modern societal expectations’ and the ‘contemporary legal landscape’.[60] In addition, the Queensland Human Rights Act 2019 (Qld), which like the Charter, provides for statutory interpretation which is compatible with humans rights, consistently with it purposes, may result in a broader interpretation of “child” in future succession law cases in that jurisdiction.
[59]Chief Justice Helen Bowskill of the Queensland Supreme Court, WA Lee Equity Lecture, 2 November 2023 [37].
[60]Ibid [31].
Interest of Justice
I have found that the plaintiff has a real prospect of establishing paragraph (g) eligibility at trial. However, even if I were not so satisfied, I would order the continuation of the proceeding under s 64 of the CPA. It is in the interests of justice that the definition of parent in the Act, the point of termination of the relationship of care giving residential parent/child and the meaning of substantial period be considered upon full legal submissions and after hearing evidence. In addition, the dispute is of such a nature that a full hearing, including the opportunity for cross examination, is appropriate.
Conclusion
For reasons above, I will dismiss the defendants’ summons. Subject to hearing from the parties, in my preliminary view, I will reserve costs of the summons to the trial judge. The parties are to submit draft orders reflecting this judgment to chambers within 14 days, including any proposed consent order regarding costs or, if necessary, a request for a listing for a short hearing on costs.
SCHEDULE OF PARTIES
| S ECI 2023 00814 | |
| BETWEEN: | |
| ILAN STERNFEIN | Plaintiff |
| - v - | |
| JONATHAN BLOOM (WHO IS SUED AS THE EXECUTOR OF THE ESTATE OF MAURICE BRUMER, DECEASED) | First Defendant |
| KEVIN GULEY (WHO IS SUED AS THE EXECUTOR OF THE ESTATE OF MAURICE BRUMER, DECEASED) | Second Defendant |
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26
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