Re Brumer; Sternfein v Bloom & Anor (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2023 00814

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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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2024
DATE OF JUDGMENT:	27 August 2024
CASE MAY BE CITED AS:	Re Brumer; Sternfein v Bloom & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 506

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FAMILY PROVISION – Summary judgment application – Appeal from orders made by Judicial Registrar dismissing application for summary judgment – Appeal allowed – Plaintiff’s Part IV application dismissed - Administration and Probate Act 1958 ss 3, 90, 90(g) - Charter of Human Rights and Responsibilities Act 2006 s 32 – Civil Procedure Act 2010 ss 62, 63, 64 - Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 - Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) (1982) 148 CLR 88 - Wong v Silkfield (1999) 199 CLR 255 - Innes-Irons & Anor v Forrest [2016] VSC 782 - Bail v Scott-Mackenzie [2016] VSC 563 - Verraty Pty Ltd v Richmond Football Club Ltd [2020] VSCA 267.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Sparke KC	Zion Legal
For the Defendants	Mr W Gillies	TLM Law

TABLE OF CONTENTS

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

Factual background........................................................................................................................... 2

The Will................................................................................................................................................ 4

Key statutory provisions................................................................................................................... 4

The primary judgment...................................................................................................................... 5

Defendants’ submissions................................................................................................................. 9

Plaintiff’s submissions................................................................................................................... 12

Legal principles................................................................................................................................ 16

Consideration.................................................................................................................................... 20

Disposition........................................................................................................................................ 27

HIS HONOUR:

Introduction

This is an appeal against an order made by a Judicial Registrar on 11 April 2024 dismissing an application for summary judgment brought by the defendants in respect of the plaintiff’s application under Part IV of the Administration and Probate Act 1958 (the Act) for provision from the estate of Maurice Brumer.

Maurice Brumer died on 16 July 2022 at the age of 78. The defendants are the executors of his estate; probate of the deceased’s last will dated 23 June 2022 (the will) was granted to them on 5 September 2022.

The plaintiff, whose background and familial circumstances are set out in further detail below, describes himself as the former stepchild of the deceased. The deceased made no provision for him under the will. On 3 March 2023, he commenced the proceeding under Part IV of the Act.

On 25 August 2023, the defendants filed an application for summary judgment on the basis that the plaintiff’s claim had no real prospect of success because he was not an ‘eligible person’ within the meaning of the Act and thereby able to bring a claim for further provision.

In her reasons for judgment delivered on 20 March 2024, the Judicial Registrar dismissed the defendants’ summary judgment application on the basis that the plaintiff had a real prospect of establishing that he was an ‘eligible person’ within the meaning of the definition of the term in paragraph (g) of s 90 of the Act (hereafter ‘paragraph (g)’). [1] That paragraph provides that an eligible person means:

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) …

Paragraph (g) was the only basis upon which the plaintiff asserted that he was an ‘eligible person’ and able to bring a claim for further provision.

[1]Re Brumer; Sternfein v Bloom & Anor [2024] VSC 121 [82] (the primary judgment).

The Judicial Registrar also determined that, even if she was not satisfied that the plaintiff was an eligible person within the meaning of paragraph (g), she would have nonetheless ordered the continuation of the proceeding under s 64 of the Civil Procedure Act 2010 as it was in the interests of justice that various issues of statutory construction be considered upon full submissions and after hearing evidence.[2]
[2]Ibid [84].

By their notice of appeal, the defendants seek that the plaintiff’s claim be dismissed on the grounds that the Judicial Registrar erred in finding that the plaintiff was an eligible person and in dismissing the application for summary judgment. It is well established that the appeal is to be conducted by way of hearing de novo.[3]
[3]See Dunn v Perpetual Trustee Company Ltd [2021] VSC 755, [4] – [5] and the authorities there cited.

For the reasons that follow, I will grant the appeal, allow the defendants’ application for summary judgment, and dismiss the plaintiff’s application under Part IV of the Act.

Factual background

The evidence before the Court on appeal was limited to an affidavit sworn by the plaintiff on 23 August 2023 and which was filed in support of his application for further provision from the deceased’s estate. The background facts, and those relevant to the plaintiff’s eligibility to bring a claim for further provision, are summarised below.

Barbara Vivienne Sternfein, the plaintiff’s mother, and Chaim Sternfein, the plaintiff’s biological father, married on 31 October 1976 and had two children, the plaintiff born on 13 June 1977 and his sister. The plaintiff lived with his mother, biological father and sister in Caulfield, Melbourne. When the plaintiff was 7 years old, the family relocated to Israel. The plaintiff’s biological father later died in 1988 when the plaintiff was 10 years old.

In about September 1989, the plaintiff, his mother and sister returned to Melbourne to live with the plaintiff’s grandmother. The deceased and the plaintiff’s mother met in about April 1990 and commenced a relationship around that time. The plaintiff’s mother and the plaintiff began residing with the deceased in about May 1990 when the plaintiff was 12 years old.

After the plaintiff’s mother and the plaintiff began residing with the deceased in about May 1990, the plaintiff’s evidence is that the deceased immediately took on a fatherly role by playing an important part during his Bar Mitzvah in June 1990, approximately six weeks following the commencement of co-habitation. The plaintiff deposes that the deceased also took on a fatherly role in other aspects of his life, including in disciplining him; he refers to a number of harsh disciplinary practices adopted by the deceased. The deceased was also actively involved in the plaintiff’s schooling, extra-curricular activities and social activities. The plaintiff also worked at the deceased’s optometry practice from 1993 to 1995.

The plaintiff resided with the deceased until about January 1997 when the plaintiff was 19 years old. The plaintiff then moved to a share-house while studying at university.

The relationship between the deceased and the plaintiff’s mother ended in about April 1997 and a property settlement was reached in November 1997. The plaintiff’s mother died two years later on 11 November 1999.

After the separation of the deceased and the plaintiff’s mother in 1997, the plaintiff did not have any contact with the deceased until 2013 when the deceased reconnected with him through Facebook. The plaintiff deposes that he and the plaintiff established a ‘solid relationship’ thereafter. The deceased met the plaintiff’s two young children during a trip to visit him in Melbourne. The deceased expressed adoration of the plaintiff’s children and requested to attend their respective Bar Mitzvah and Bat Mitzvah, in Sydney, although COVID-19 restrictions prevented that occurring. The deceased asked the plaintiff to refer to him as his children’s ‘unofficial Godfather’. The plaintiff deposes that the deceased referred to him as his son and that he house-sat the deceased’s house when the deceased was away travelling. The plaintiff remained in weekly contact with the deceased by telephone and via Facebook until the deceased passed away.

It is to be noted that the deceased had two biological children, Mahanama[4] Heller and David Heller. The evidence indicates that they are between four and eight years older than the plaintiff.
[4]Referred to in the will as ‘Marcus’.

The Will

The will makes no provision for the deceased’s biological children referred to above,[5] the plaintiff, or any other person. Instead, the deceased provided for the whole of his net estate to be held by the Brumer Trust, a trust to be established by his trustees for a specific public charitable purpose directed at funding research and promoting awareness of myopization.
[5]The deceased’s biological children have each lodged a Part IV claim in respect of the estate of the deceased.

Key statutory provisions

Section 90A of the Act provides that an application for a ‘family provision order’ may be made by an ‘eligible person’. An ‘eligible person’ is defined in s 90 by reference to persons in specific categories which are generally expressed by reference to types of relationship or connection with a deceased. ‘Eligible person’ is defined as follows:

(a)a person who was the spouse or domestic partner of the deceased at the time of the deceased's death;
(b)a child of the deceased, including a child adopted by the deceased who, at the time of the deceased's death, was—
(i) under the age of 18 years; or
(ii)a full-time student aged between 18 years and 25 years; or

(iii) a child with a disability;
(c)a stepchild of the deceased who, at the time of the deceased's death, was—
(i) under the age of 18 years; or
(ii)a full-time student aged between 18 years and 25 years; or

(iii) a stepchild with a disability;
(d)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 by the deceased as a natural child of the deceased who, at the time of the deceased's death, was—
(i) under the age of 18 years; or
(ii)a full-time student aged between 18 years and 25 years; or

(iii) a child with a disability;
(e)a former spouse or former domestic partner of the deceased if the person, at the time of the deceased's death—
(i)would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and

(ii) has either—
(A) not taken those proceedings; or
(B)commenced but not finalised those proceedings; and

(iii)is now prevented from taking or finalising those proceedings because of the death of the deceased;

(f)a child or stepchild of the deceased not referred to in paragraph (b) or (c);
(g)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);

(h) a registered caring partner of the deceased;
(i) a grandchild of the deceased;
(j)a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (d) or (g)) if the child of the deceased dies within one year of the deceased's death;
(k)a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;

The primary judgment

The Judicial Registrar commenced her reasons for judgment by setting out the relevant background to the proceeding, including the various factual matters to which I have already referred above.[6] The Judicial Registrar then summarised the parties’ submissions,[7] which were broadly the same as the submissions relied upon in the appeal and which I have outlined below.
[6]The primary judgment (n 1), [1], [11] – [16].
[7]Ibid [17]–[20].

The Judicial Registrar referred to the principles relating to summary judgment,[8] relevantly noting that there were two elements of the plaintiff's application that may give rise to additional caution before summarily dismissing the claim: (a) the fact that paragraph (g) was introduced by amendment and had been the subject of only one judicial determination, meaning that caution should be exercised so as not to stifle the development of the law by summarily rejecting a novel claim; and (b) that there may be disputes of fact in relation to the nature and extent of the deceased’s role in the plaintiff’s life which are crucial to the determination as to how the Act would be applied in the proceeding.[9]
[8]Ibid [21]–[25].
[9]Ibid.

The Judicial Registrar then considered the principles of statutory construction.[10] The Judicial Registrar accepted the plaintiff’s submission that family provision legislation is remedial in character, while also noting that the particular purpose of each provision must be identified, and that ‘… the requirement to give a purposive interpretation to family provision legislation generally, is qualified when dealing with eligibility specifically.’[11] The Judicial Registrar also considered that s 32 of the Charter of Human Rights and Responsibilities Act 2006 required her to interpret paragraph (g) ‘… as far as possible consistent with its purpose, in a way that is compatible with human rights.’[12]
[10]Ibid [26]–[30].
[11]Ibid [28] - [29], citations omitted.
[12]Ibid [30].

The Judicial Registrar outlined the elements the plaintiff was required to establish s 90(g) eligibility as follows:[13]

… 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).

[13]Ibid [31], original emphasis.

The Judicial Registrar considered the meaning of the word ‘parent’ in s 3 of the Act, noting her judgment was considered only with the concept of a care-giving, residential parent.[14] Section 3 of the Act provides as follows:

[i]n this Act unless inconsistent with the context or subject-matter- …
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; …

[14]Ibid [34].

The Judicial Registrar found that a care-giving, residential parent did not require a biological or genetic relationship with their child to come within the definition.[15]
[15]Ibid [35]–[39].

In relation to the requirement in the definition of ‘parent’ for ‘day to day control’, the Judicial Registrar was satisfied that the plaintiff had a real prospect of establishing that the deceased had day to day control of him from the time he was 12 years old until the ages of either 18 or 19 years old.[16] That is, the plaintiff had a real prospect of establishing the deceased was a care-giving, residential parent of his from the age of 12, but not after the ages of 18 or 19.[17] The point of transition was a matter of evidence at trial.[18]
[16]Ibid [50].
[17]Ibid [50]–[51].
[18]Ibid [52].

The Judicial Registrar then considered the ‘duration factor’, noting that there was some uncertainty as to the duration of the relationship of parent/child between the deceased and the plaintiff. She was nevertheless satisfied that the plaintiff had a real prospect of establishing 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.[19]
[19]Ibid [55].

In considering whether this constituted a ‘substantial period’ during the deceased’s life, the Judicial Registrar drew an analogy with statutory provisions which deal with the establishment of de facto relationships, such relationships usually requiring at least two or three years to satisfy the definition.[20] In addition, the Judicial Registrar noted that two years may be a ‘substantial period in the life of a minor dependent child’ and that ‘six years is a substantial part of any childhood’.[21] For those reasons, the Judicial Registrar was satisfied that the plaintiff had a real prospect of satisfying the ‘duration factor’ in paragraph (g).[22]
[20]Ibid [56].
[21]Ibid [57].
[22]Ibid [58].

With respect to the ‘belief factor’, the Judicial Registrar found that the plaintiff’s knowledge that the deceased was a care giving residential parent meant that he had a real prospect of satisfying the ‘belief factor’ in paragraph (g).[23]
[23]Ibid [61]–[63].

Turning to the ‘treatment factor’, the Judicial Registrar rejected the defendants’ submission that s 90(g) eligibility is restricted to those circumstances where treatment as a natural child entails ‘misleading the child (and as many of the rest of the world as possible) as to the child’s genetic parentage’.[24] The Judicial Registrar found that the ‘treatment factor’ may be interpreted as providing ‘… care and control for the immediate and long-term needs of a dependent minor … for a substantial period,’ such as the ‘long term commitment to that child’s future development, including indirect care like financing a household of which the child is a member.’ [25] She found the plaintiff had a real prospect of satisfying the ‘treatment factor’ in paragraph (g).[26]
[24]Ibid [64]–[67].
[25]Ibid [70].
[26]Ibid [74].

The Judicial Registrar also rejected the defendants’ submission that s 90(g) eligibility is designed to capture people other than children and step-children who are eligible under other paragraphs of s 90, and that the intention of the Act is that, if the plaintiff as a step-child is ineligible under the relevant step-child provisions, he cannot claim paragraph (g) eligibility.[27] The Judicial Registrar considered that this submission may be by reference to the maxim of statutory construction expressio unius est exclusio alterius (‘an express reference to one matter indicates that other matters are excluded’), or an application of the maxim expresum facit cessar tactium (‘express inclusion of one thing implies exclusion of others’).[28] She considered that there was a real prospect that the plaintiff may succeed in arguing that such maxims cannot be relied on to impliedly exclude former step-children from being eligible under s 90(g).[29]
[27]Ibid [75]–[76].
[28]Ibid [76].
[29]Ibid.

As I have noted, the Judicial Registrar found the plaintiff had a real prospect of establishing s 90(g) eligibility at trial but, even if she was not so satisfied, she would order the continuation of the proceeding under s 64 of the CPA.

Defendants’ submissions

The primary contention advanced by the defendants on appeal was that, as a matter of statutory construction of the definition of ‘eligible person’ in s 90 of the Act, paragraph (g) is a separate and distinct category to those categories identified in the other paragraphs of the definition such that, if a child or stepchild does not come within the relevant paragraph expressly stated to apply to them,[30] they cannot then validly assert eligibility under paragraph (g). Paragraph (g) was intended to deal with the special and unusual situation where a person believes that the deceased was their parent, and they were treated as the deceased’s natural child, but where they were not in fact their natural child. Counsel referred to the following examples:
[30]Paragraphs (b), (c) and (f).

(a) where a person believed that those who raised them in childhood were their parents, when in fact they were their grandparents and the person whom they believed to be an older sibling was in fact their biological parent;

(b) a foster family where one or both of a person’s biological parents died when they were an infant and that person did not realise that, although they had been taken in by the foster family, they had not been formally adopted; or

(c) extended families in which the child has come into the family not knowing precisely who the parents were.

The defendants submitted that this construction was supported by Innes-Irons & Anor v Forrest,[31] the only other decision of the Court in relation to eligibility under paragraph (g). In that case, Derham AsJ dismissed applications for summary dismissal brought in relation to applications for further provision made by two plaintiffs who were the natural children of the deceased, but who had been adopted by other persons before the deceased’s death. Associate Justice Derham’s summary of his conclusions included the following observations upon which the defendants placed particular emphasis, and which it was submitted were disregarded by the Judicial Registrar:[32]

It may be arguable that Parliament’s intention in wording s.90(g) in the way it did was to include persons who are not a deceased’s natural children. But in my view, paragraph (g) reveals an intention to encompasses a class of persons not caught under the categories of a child or stepchild of the deceased.[33] Because the plaintiffs fall within the natural and ordinary meaning of the words of the paragraph, there is a real as opposed to a fanciful prospect that at trial they will be found to be eligible persons.

[31][2016] VSC 782 (‘Innes-Irons’).

[32]Ibid [7], underlining added.

[33]Section 90(b), (c) or (f) of the Act.

It was submitted by the defendants that, although the plaintiff referred to himself as a ‘former stepchild’ of the deceased, he was not ‘a stepchild’ so as to come within the categories of ‘eligibility person’ which expressly refer to stepchildren.[34] This is because, as stated by Derham AsJ in Bail v Scott-Mackenzie,[35] for the purposes of Part IV of the Act, the relationship of stepparent and stepchild ends if, before the death of the deceased, the marriage or domestic partnership ends otherwise than by the death of the parent.[36] Here the relationship between the deceased and the plaintiff’s mother ended in 1997, many years before the deceased’s death.[37]
[34]Paragraphs (b) and (f).
[35][2016] VSC 563.
[36]Ibid [6].
[37]Senior counsel for the plaintiff confirmed that no submission was advanced that the plaintiff was a stepchild as referred to in paragraph (c) of the definition of ‘eligible person’.

It was submitted that a narrower construction of paragraph (g) was also consistent with the extrinsic materials to the legislative amendment by which the current category-based framework of eligibility, including paragraph (g), was introduced.[38] Reliance was placed on the following extracts from the second reading speech for the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014:

To reduce the potential for opportunistic claims, and to better reflect the underlying policy objectives of family provision laws, the bill amends the current family provision scheme to limit who can make a claim on a deceased estate and the grounds on which a claim can be made.
Only specified categories of people will be eligible to make a claim. The deceased’s children and stepchildren under 18 (and full-time students up to the age of 25), children with a disability, spouses or domestic partners at the time of death, and former spouses and partners who have not had recourse to the Family Law Act 1975 before the death may apply for a family provision claim as of right. For other specified applicants, the court will also need to be satisfied that they were financially wholly or partly dependent on the deceased at the time of the deceased’s death. This category includes adult children or stepchildren, registered caring partners, grandchildren and other members of the deceased’s household at the time of the deceased’s death.

[38]The Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (the Amendment Act).

The defendants submitted that this is not a case in which the plaintiff was treated as a natural child, noting the plaintiff’s evidence that alleges the deceased was hostile towards him. As the legislative intention in respect of s 90(g) was said to encompass a class of persons not caught under the categories of a child or stepchild, the plaintiff is not eligible under s 90(g).

Aside from the above submission about the construction of paragraph (g), the defendants advanced two other points in relation to its application in the circumstances of the case:

(a) It was submitted that there was a dearth of evidence in relation to the plaintiff’s belief that the deceased was his parent. It was submitted that the plaintiff did not clearly depose that he believed the deceased was his parent, but instead simply set out the relationship between them. The plaintiff knew that his own father had died in 1988, and that the deceased was in fact akin to being his stepfather.

(b) Even if the plaintiff believed that the deceased was his parent, it was submitted that he did not do so for a substantial period during the life of the deceased: seven years within deceased’s life of 78 years was not ‘substantial’.

Plaintiff’s submissions

The plaintiff advanced a number of points in response to the defendants’ primary contention referred to above. It was first submitted that the de novo nature of the appeal meant that it was immaterial whether or not the Judicial Registrar erred by disregarding the observations of Derham AsJ in Innes-Irons and, in any event, the Court as presently constituted is not bound by the decision.

The emphasis on Derham AsJ’s observations in Innes-Irons referred to in [33] above was said to be misplaced for several reasons. The remarks were obiter dicta: the Court did not find that the inclusion of ‘child’ in paragraphs (b) and (f) of the definition of ‘eligible person’ precluded a child from satisfying the criteria in paragraph (g), or that the reference in the definition of ‘eligible person’ to a step-child precluded a step-child from satisfying the criteria in paragraph (g). It was submitted that Derham AsJ’s observations were not based upon a ‘principled analysis’ of the relevant statutory provisions. They were also described, for various reasons which it is unnecessary to rehearse, as being not ‘entirely cohesive’ with the substantive analysis in his reasons for judgment.

In contrast, the plaintiff reiterated that it was necessary to focus upon the actual words in paragraph (g), as the Judicial Registrar did in the primary judgment. In that regard, they emphasised the definition of ‘parent’ in s 3 of the Act[39] which does not require a person to be a biological parent, and submitted that the Court should give effect to the definition in accordance with the ordinary meaning of its words.
[39]See above at [23].

The plaintiff drew attention to the overarching scheme of Part IV the Act as one which recognises the responsibility and moral duty of a deceased person towards a claimant. The plaintiff submitted that, in choosing the language it did in paragraph (g), the legislature must have contemplated that there would be circumstances where a non-biological parental relationship gave rise to the relevant moral duty. The remedial nature of Part IV of the Act meant that its provisions should be construed so as ‘to give the most complete remedy which its phraseology permit[s]’,[40] and that the Court should not place a restricted construction on its terms.
[40]Barns v Barns (2003) 214 CLR 169, [44] referring to Holmes v Permanent Trustee Company of NSW (1932) 47 CLR 113.

It was submitted that, because the expression ‘day to day care and control’ in the definition of ‘parent’ in s 3 of the Act is not defined by the Act, it should be construed consistently with the Act’s wide remedial purpose, and may include matters including feeding, disciplining or housing a child and providing guidance to that child. On that construction, the deceased was a person with the day to day care and control of the plaintiff given the evidence that he:

(a) was the father figure in the household in which the plaintiff lived from the ages of 12 to 19 years old;

(b) took on the role of the plaintiff’s father at his Bar Mitzvah;

(c) was actively involved in the plaintiff’s secondary schooling, attended school plays, facilitated tennis games, drove the plaintiff to the school formal, was pleased when the plaintiff did well in year 12 and was actively involved in the decision process for the plaintiff’s tertiary education; and

(d) took it upon himself to discipline the plaintiff.

The degree and extent of control exercised by the deceased over the plaintiff, and the age to which it continued, were matters for trial.

In relation to the words ‘treated as a natural child’ in paragraph (g), notwithstanding the various criticisms advanced of Derham AsJ’s judgment in Innes-Irons referred to above, the plaintiff nevertheless invited the Court to adopt the following observations by his Honour in that case:[41]

The Act uses the term ‘treated as a natural child’ in its natural and ordinary meaning with no definitional provision expanding on this. The Macquarie Dictionary[42] defines to ‘treat’ as ‘to act or behave towards in some specified way’, and ‘treatment’ as ‘the act or manner of treating or the action or behaviour towards a person.’ It seems to me that the term ‘treated’ refers to the mere behaviour towards another, and contains no negative or exclusionary connotations, as is advanced by the defendant.
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.[43]

[41]Innes-Irons (n 31), [45] – [46].

[42]The Macquarie Dictionary, Sixth Edition, 2013.

[43][2016] VSC 782.

At one point in oral submissions, it was submitted on behalf of the plaintiff that, because there is no identifiable objective test as to what it is to be a parent, either of a natural child or of a step-child, no particular significance attached to the use of the word ‘natural’ in the treatment element in paragraph (g). Although it was accepted that Parliament must be taken to have inserted the word for a reason, the plaintiff submitted that it was difficult to discern that reason when there are no objectively identifiable differences in the way in which a person may treat a natural child, as distinct from a step child or a child generally.

It was then submitted that the use of the word ‘natural’ was to allow for those cases where there may be a difference in the treatment at home between a natural child and other children. Whether a person was treated as a natural child was, so it was submitted, essentially an evidentiary question for determination at trial which could arise in cases, such as the present, where there were both natural children and step children. This was consistent with an interpretation of the word ‘treated’ as one connoting behaviour, and were matters which were inherently matters for evidence and determination at trial. The requirement that a person be ‘treated as a natural child’ did not impose any requirement in the nature of a belief by the parent that the child was their natural child; to do so would involve placing an impermissible gloss on the words of the provision.

As to the defendants’ submission that there was no evidence that the plaintiff believed that the deceased was his natural parent, it was submitted, by reference to the definition of ‘parent’, that this also involved the insertion of an impermissible gloss on the language of the definition. Paragraph (g) did not impose any requirement that a person believed that the deceased was their natural parent. Here, the deceased treated the plaintiff as a natural child by:

(a) taking on the important role of being the male parent at the plaintiff’s Bar Mitsvah;

(b) referring to the plaintiff as his son and that he was proud of his work;

(c) establishing a relationship with the plaintiff when the plaintiff was an adult;

(d) saying he would have provided financial support during the plaintiff’s divorce;

(e) trusting the plaintiff to house-sit his house in 2019; and

(f) being in regular contact with the plaintiff by phone and social media.

As to the requirement in respect of a ‘substantial period’ in paragraph (g), the plaintiff accepted that this could be satisfied by a time period which forms a large percentage of the deceased’s life. However, it was submitted that it could also be satisfied in other ways, for example, by reference to ‘weight or quality’, such as a relationship being important or occurring at a notable part of a person’s life. The plaintiff submitted that, on this latter construction, he satisfied the relevant requirement in paragraph (g) and referred to the matters in [42](a)-(d) above, as well as the following:

(a) that he worked at the deceased’s optometry practice when he was between 15 to 17 years old, conduct which could be seen as the deceased having a ‘mentoring’ role in what was said to be a formative experience for the plaintiff which led to him ultimately pursuing a career as an optical dispenser;

(b) the deceased’s ‘parental’ role was one he took on in the context of a domestic relationship; and

(c) the contact between the plaintiff and the deceased in later years, including the fact it was initiated by the deceased, which demonstrates that the relationship was ‘substantial’ enough to cause the deceased to want to re-establish that relationship.

The changing nature of parent-child relationships and their variable character meant that consideration of the ‘substantial period’ requirement was a matter for judgment at trial based upon the evidence. It was not appropriate to simply apply a mathematical approach to identify the period of time in which the other elements of the definition were present.

Although the parties were in agreement as to the applicable principles relating to summary judgment referred to below, the plaintiff also emphasised the Judicial Registrar’s observations in Re Meuleman; Quminakelo v Amidzic that, where a novel issue relating to statutory interpretation arises, caution should be exercised so as not to stifle the development of the law by summarily rejecting a novel claim.[44]

Legal principles

[44][2020] VSC 376, [25].

The defendant applied for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010, contending that the plaintiff’s claim had no real prospect of success. A claim will properly be described as having no real prospect of success if it has a ‘fanciful’, as opposed to a ‘real’ prospect of success. The power to terminate proceedings summarily is, however, to be exercised with caution and should not be exercised unless it is clear that there is no real question to be tried; this is particularly so where a case may involve issues of contested fact.[45] Even if satisfied that a proceeding has no real prospect of success, pursuant to s 64 of the Civil Procedure Act 2010, a court may, however, order that the proceeding proceed to trial if it is not in the interests of justice to summarily dismiss the proceeding, or the dispute is of such a nature that only a full hearing on the merits is appropriate.
[45]Matthews v SPI Electricity Pty Ltd (2011) 34 VR 584, [22].

It is apparent from the parties’ submissions that the ascertainment of the proper construction of paragraph (g) is central to the determination of the appeal. At the hearing of the appeal, it was uncontentious that the following paragraphs of the judgment of the Court of Appeal in Verraty Pty Ltd v Richmond Football Club Ltd encapsulated the relevant principles of statutory construction:[46]
[46]Verraty Pty Ltd v Richmond Football Club Ltd [2020] VSCA 267, [53]-[62].

[53]The principles to be applied are not in doubt. The High Court has repeatedly stated that the process of statutory construction starts with the actual text of the statute. The text, however, is to be considered in light of the context and purpose of the statute or particular provision.
[54]In Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue, the plurality summarised the principles as follows:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[47]
(2009) 239 CLR 27, 46–6 [47]; [2009] HCA 41 (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted). See also Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR
503, 519 [39]; [2012] HCA 55 (French CJ, Hayne, Crennan, Bell and Gageler JJ); Commissioner of
Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523, 539–40 [47]; [2013] HCA 16 (French CJ,
Crennan, Kiefel, Gageler and Keane JJ).

[55]In CIC Insurance Ltd v Bankstown Football Club Ltd, the High Court said:
Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.[48]
[48] (1997) 187 CLR 384, 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations
omitted) (‘CIC Insurance’).

[56]In Certain Lloyd’s Underwriters v Cross, French CJ and Hayne J emphasised the need to look at what the statute says:[49]
[49](2012) 248 CLR 378, 389–90 [24]–[25]; [2012] HCA 56 (‘Certain Lloyd’s Underwriters’).
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative ‘intention’ is to use a metaphor. Use of that metaphor must not mislead. ‘[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’ (emphasis added). And as the plurality went on to say in Project Blue Sky:
Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

[57]In Project Blue Sky Inc v Australian Broadcasting Authority, the plurality said that the legal meaning is ‘the meaning that the legislature is taken to have intended [the provision] to have’.[50] It may or may not be the same as the literal meaning.[51]
[50] (1998) 194 CLR 355, 384 [78]; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ) (‘Project
Blue Sky’).
[51]Ibid.
[58]Difficulties may arise if the literal meaning conflicts with the legislative purpose. In such circumstances, a departure from the literal meaning may be justified. The resultant tension was described by Francis Bennion in Statutory Interpretation: A Code as follows:
Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.[52]
[52] Francis Bennion, Statutory Interpretation: A Code (Butterworths^,3^rd ed, 1997) 344, referred to with
approval in Project Blue Sky (1998) 194 CLR 355, 384 [78]; [1998] HCA 28 (McHugh, Gummow,
Kirby and Hayne JJ).

[59]In Colonial Range Pty Ltd v CES-R (Vic) Pty Ltd,[53] the Court of Appeal gave examples of conflicts between the literal meaning and the identified legislative purpose which have justified departure from the literal meaning. These include circumstances where:
[53][2016] VSCA 328.
(a)the literal meaning would conflict with other provisions of the statute;
(b)the literal meaning is inconsistent with the purposes of the statute;
(c)the literal meaning is incapable of practical application; or
(d)adoption of the literal meaning would lead to a result that is absurd, unreasonable or anomalous.[54]

[60]Departure from the literal meaning will only be justified if the alternative construction is ‘reasonably open’[55] and ‘consistent with the language in fact used by the legislature’.[56] The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[57]
[61]It must also be recalled that s 35(a) of the Interpretation of Legislation Act 1984 provides that ‘a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object’.
[62]In the case of two strongly competing interpretations, the High Court has said:
If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.
[54]Ibid [53] (Warren CJ, Whelan JA and Riordan AJA) (citations omitted).
[55]        CIC Insurance (1997) 187 CLR 384, 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and
Gummow JJ).
[56]        Taylor v The Owners—Strata Plan No 11564 (2014) 253 CLR 531, 549 [39]; [2014] HCA 9
(French CJ, Crennan and Bell JJ).
[57]        Certain Lloyd’s Underwriters (2012) 248 CLR 378, 390 [26]; [2012] HCA 56 (French CJ and Hayne J).

Consideration

It is apparent from the text of paragraph (g) that the following three elements must be satisfied for a person to be an eligible person within the meaning of the paragraph:

(a) ‘for a substantial period during the life of the deceased’ the person must have;

(b) ‘believed that the deceased was a parent of the person’; and

(c) been ‘treated as a natural child of the deceased not referred to in paragraph (d)’.

It is convenient to first consider the element of belief identified in subparagraph (b) above. To be an eligible person under paragraph (g), a person must have believed that the deceased was ‘a parent’ of the person. Section 3 of the Act provides that, unless inconsistent with the context or subject matter, ‘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’. This definition applies in respect of the use of the word ‘parent’ in paragraph (g); no inconsistency with the subject matter of the definition or its context arises.

As the Judicial Registrar stated, a care-giving, residential parent requires no biological or genetic relationship with their child to come within the definition of ‘parent’ in the Act.[58] On the basis of the plaintiff’s evidence to which the Judicial Registrar referred at [45] and [49] of the primary reasons, I respectfully agree with her conclusion that the plaintiff has a real prospect of establishing that the deceased was a care giving, residential parent of the plaintiff from when the plaintiff was 12 years old, until when he become independent of the deceased’s care and control by maturity, the point of transition being a matter of evidence at trial.[59] The defendants’ submissions that there was no evidence that the plaintiff believed that the deceased was a parent of his is wrong: the plaintiff deposed to this belief in his affidavit.[60] On that basis, this issue is properly a matter for trial.
[58]The primary judgment (n 1), [35].
[59]Ibid [50], [52].
[60]Affidavit of Ilan Marc Sternfein sworn on 23 August 2023 [3].

I next consider the issue of ‘treatment’: whether the plaintiff ‘was treated as a natural child of the deceased not referred to in paragraph (d)’.

I note that paragraph (d) of s 90 is an analogous category of eligible person to that defined in paragraph (g), but which is limited to persons who, at the time of the deceased's death, were either under 18 years of age, a full-time student aged between 18 years and 25 years of age, or a child with a disability.[61] The plaintiff is not in any of these classes.
[61]Although it is apparent that paragraphs (d) and (g) of the definition of ‘eligible person’ in s 90 are cognate provisions, they contain a further difference to that referred to above. Whereas paragraph (g) contains the words ‘was treated as a natural child’, paragraph (d) has the words ‘was treated by the deceased as a natural child’ (italics added). No indication as to the rationale for this difference is apparent from the text of the Act or the extrinsic material to the Amendment Act. Counsel were unable to assist in identifying any reason for the difference. This leaves open the possibility that either the inclusion of the italicised words in paragraph (d), or their omission from paragraph (g), is the result of a drafting error. Notwithstanding this possibility, the application must be determined on the basis of the provisions of the Act as enacted. The above difference in the language of paragraphs (d) and (g) is, however, of no apparent relevance in considering the issues of construction of paragraph (g) raised in this proceeding.

In the context of all of the paragraphs which comprise the definition of ‘eligible person’ in s 90 of the Act, the striking feature of the ‘treatment element’ of paragraph (g) is the use of the term ‘natural child’. The paragraphs variously refer to three[62] categories of children: a ‘child’,[63] a ‘stepchild’[64] and a ‘natural child.’[65] Importantly, these provisions were not the result of piecemeal legislative amendment over time; the entirety of the definition of ‘eligible person’ was inserted by s 3(2) of the Amendment Act and has remained unchanged since its enactment in 2015. These are strong contextual indications that, in providing for the category of eligible persons in paragraph (g), Parliament intended to specifically refer only to persons there identified: those who, relevantly, were treated as a natural child (as distinct from any other child) of the deceased.
[62]Paragraph (i) also refers to a ‘grandchild’.
[63]Paragraphs (b) and (f).
[64]Paragraphs (c) and (f).
[65]Paragraphs (d) and (g).

This conclusion is supported by the maxim of statutory construction expressio unius est exclusio alterius: the expression of one is the exclusion of the other. I am mindful of the caution which must be brought to the potential application of this principle. In Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW), the High Court stated that the maxim:[66]

… must always be applied with care, for it is not of universal application and applies when the intention it expresses is discoverable upon the face of the instrument. It is a “valuable servant, but a dangerous master”.’

[66](1982) 148 CLR 88, 94.

The task of constructing paragraph (g) does not involve the Court in having to construe legislative provisions which are the product of amendment over time, a circumstance which the authorities recognise may render Expressio unius reasoning to be unsafe. To the contrary, the circumstances in which the definition of ‘eligible person’ was inserted into the Act to which I have referred suggests that Parliament directed itself with particularity to the category of persons who would be eligible to make a claim for further provision under the Act.

The extrinsic materials to the Amendment Act are generally consistent with this conclusion. First, as counsel for the defendants submitted, it is not to be overlooked that the purposes which actuated the amendments included ‘limit[ing] who can make a claim on a deceased estate’.[67] The general overarching purpose of the amendments was to confine, rather than expand, the class of persons able to bring a claim under Part IV of the Act.
[67]Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2014, 3443 (Robert Clark,
Attorney-General).

Secondly, this purpose was to be achieved by the definition of specific categories of ‘eligible persons’. Some of these categories were controversial and the subject of amendments proposed by the opposition. Significantly, as stated by the Member for Lyndhurst, Mr Pakula (for the opposition), ‘It was in regard to children, stepchildren and those treated as children of the deceased who were not under 18, not full-time students under 25 and not disabled where the controversy in this Bill lay’.[68] Associate Justice Derham’s careful consideration of the extrinsic materials in Innes-Irons[69] shows that the definition of ‘eligible person’ ultimately enacted, including paragraph (g), was a specific matter of parliamentary debate and consideration. This is consistent with the terms of paragraph (g) and the reference therein to ‘natural child’ being a product of ‘deliberate legislative intention’, as distinct from ‘inadvertence or accident’. [70]
[68]Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2014, 3652 (Martin Pakula,
Member for Lyndhurst).
[69]Innes-Irons (n 31) [53]-[61].
[70]See Case (pseudonym) v R [2023] VSCA 12 [128].

Although ‘natural child’ is not defined in the Act, its meaning is uncontroversial and captured in the following definition in Black’s Law Dictionary:[71]

A child by birth, as distinguished from an adopted child – also termed biological child; genetic child.

[71]Black’s Law Dictionary (11^th ed, 2019) ‘natural child’ (def 1).

Eligibility under paragraph (g) is accordingly dependent on a putative claimant establishing, amongst other things, that they were ‘treated as’ a biological child of the deceased. The expression ‘treated as’ is not defined in the Act. In that circumstance, the starting point when construing family provision legislation, as recognised by the High Court, is the ‘ordinary natural meaning of the words of the section’.[72]
[72]See Gummow and Hayne JJ in Barns v Barns (n 40), [44], referring to the observations of Williams and Fullagar JJ in Worladge v Doddridge (1957) 97 CLR 1, 9.

The Shorter Oxford English Dictionary relevantly defines the verb ‘treat’ as follows:[73]

Deal with or behave or act towards in a specified way; regard in a particular way and deal with accordingly …

[73]Shorter Oxford English Dictionary (6^th ed, 2007) ‘treat’ (def 5).

In the context of paragraph (g), it is only the second of these definitions (in which ‘treated as’ a biological child means ‘regarded as’ a biological child) which is capable of sensible and workable application. This is because, as senior counsel for the plaintiff acknowledged, there is no objectively ascertainable conduct or behaviour which might be identified as being referable to biological children in particular, as distinct from children generally or other categories of children such as ‘stepchildren’. On that construction, a putative claimant could never satisfy this element of paragraph (g); there are no behaviours or actions in which persons might engage which could be said to be specific or referable to another’s status as a biological child in particular.

Senior counsel sought to avoid this analysis by submitting that it was a matter of evidence for trial. As I understood the submission, it was submitted it might be established at trial that the behaviours and actions of the deceased towards the plaintiff as a child were the same or similar to the manner in which he behaved towards his biological sons. I reject this submission. Paragraph (g) does not speak of a person being treated ‘as if’ or ‘like’ a natural child; it speaks of the treatment ‘as a’ natural child. The potential differences in meaning between the expressions ‘as a’ and ‘as if’ to which Derham AsJ referred to in Innes-Irons noted in [43] above are less apparent when the expression ‘treated as a natural child’ is construed as meaning ‘regarded as a natural child’. Further, construed in this way and contrary to the plaintiff’s submissions referred to in [44] above, one can readily identify in the examples to which counsel for the defendants referred in [32] above, those particular familial circumstances which paragraph (g) may be taken to address.

Given the impossibility of identifying behaviours or actions which are specific to the treatment of natural children in particular, as distinct from children generally, in order for paragraph (g) to have operation and effect, the expression ‘treated as a natural child’ is to be construed, consistent with one of its ordinary meanings, as meaning ‘regarded as a natural child’. For these reasons, I do not, with respect, consider Derham AsJ’s construction of the term ‘treated as a natural child’ in Innes-Irons set out in [43] above to be correct.[74]
[74]I note that The Macquarie Dictionary to which Derham AsJ referred also includes the following definition of ‘treat’: to look upon, consider, or regard in a specified aspect, and deal with accordingly.

It follows from the determination of these points of statutory construction that the plaintiff’s claim for provision for the deceased’s estate must fail: there is no suggestion in the evidence that he was ever regarded by anyone as the deceased’s biological child so as to satisfy this element of paragraph (g) and to thereby be an ‘eligible person’ entitled to bring a claim under the Act. It was not submitted that there was any basis in the plaintiff’s affidavit for this particular matter to be a matter of evidence at trial. This is unsurprising given the age at which the plaintiff came to reside with the deceased and the circumstances in which that occurred referred to in [10]-[11] above.

Given this conclusion, the question of whether there is an arguable basis upon which the Court might find that the treatment element occurred ‘for a substantial period during the life of the deceased’ within the meaning of paragraph (g) does not arise for determination. However, in deference to the arguments of counsel and noting my conclusions in relation to the element of belief (which is also subject to the ‘substantial period’ requirement), I make the following observations.

The defendants’ principal contention was that the period of nearly seven years over which the plaintiff resided with the deceased cannot, in the context of the deceased’s life of 78 years, be characterised as ‘substantial’.

In my consideration, properly construed, an assessment as to whether the requisite belief was held by a person, or whether they were treated as a natural child, ‘for a substantial period during the life of the deceased’, is not confined to calculating the proportion of a deceased’s life during which a person believed that the deceased was their parent, or were treated in the requisite way.

If Parliament had intended paragraph (g) to be construed in this way it could have readily made clear provision to this effect. As the Judicial Registrar observed, the defendants’ submission treats the text of the paragraph as if it stated ‘a substantial period of the deceased’s life’, instead of the actual words, ‘a substantial period during the deceased’s life’ (my emphasis).[75]
[75]The primary judgment (n 1) [53].

The approach contended for by the defendants would leave the assessment of substantiality in paragraph (g) as being contingent on a deceased’s lifespan; all else the same, the requirement would more likely be satisfied in respect of a deceased who dies unduly young, as compared to one who enjoys great longevity. Such a seemingly arbitrary approach which makes the operation of the provision dependent on a deceased’s lifespan is inconsistent with Parliament’s concern in paragraph (g) with matters pertaining to a putative claimant: their belief and their treatment.

A broader approach to the application of paragraph (g) which is not confined to a mathematical comparison between periods of time is also consistent with the assortment of ordinary meanings and latent ambiguity or variability inherent in the words ‘substantial’ and ‘period’ used in paragraph (g).

The word ‘substantial’ is not defined in the Act. It has been described by one member of the High Court as a word which is ‘susceptible of ambiguity’ and ‘calculated to conceal a lack of precision’.[76] This is evident in the range of the dictionary definitions, including, but not limited to, the following:[77]

‘of ample or considerable amount or size; sizeable, fairly large’;[78]
‘having solid worth or value, of real significance; solid; weighty; important, worthwhile’;[79] and
‘having substance; not imaginary, real; …’.[80]

[76]Justice Deane in TillmansButcheries Pty Ltd v Australasian Meat Industry Employees (1979) 27 ALR 367, 382.

[77]Shorter Oxford English Dictionary (6^th ed, 2007) ‘substantial’ .

[78]Ibid (def 3).

[79]Ibid (def 4).

[80]Ibid (def 11).

In Wong v Silkfield, the High Court referred with approval to the above observations, stating that:[81]

The term "substantial" may have various shades of meaning. Having regard to the context, it may mean "large or weighty" or "real or of substance as distinct from ephemeral or nominal".

[81](1999) 199 CLR 255, [27], citation omitted.

In paragraph (g), ‘substantial’ attaches adjectivally to the word ‘period’. High authority recognises that the word ‘period’ has a ‘variable meaning’ and that it is capable of various meanings depending on the particular statutory context.[82] In its ordinary meaning, ‘period’ may mean ‘a course or extent of time’. Another dictionary meaning which is capable of application in the context of paragraph (g) is ‘a stage in the progress of a thing; a point in time, a moment, an occasion’.[83]
[82]See Harman Nominees v Leighton Shores [2012] WASCA 189, [56]; BMV16 v Minister for Home Affairs [2018] FCAFC 90, [73].
[83]Shorter Oxford English Dictionary (6^th ed, 2007) ‘period’ (def 7).

In light of the foregoing discussion, it would appear that ‘a substantial period during the life of the deceased’ may be capable of being satisfied by evidence that, for a significant stage of a person’s life during the deceased’s lifetime, the person believed that the deceased was their parent and was treated as a natural child, even if that stage was not a proportionately large part of the deceased’s lifespan. However, in light of my conclusion in [68], it is unnecessary to resolve this question.

Disposition

I have determined that the plaintiff’s claim for further provisions has no real prospect of success because, on his own evidence and the proper construction of paragraph (g), he is not capable of satisfying one of the essential elements of that definition in order to be an ‘eligible person’ entitled to bring a claim for further provision under the Act. The bases of my conclusion means that it is in the interests of justice to summarily dismiss the plaintiff’s application, and there is no sound basis to exercise the Court’s discretion under s 64 of the Civil Procedure Act 2010 to order that the application proceed to trial.

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SCHEDULE OF PARTIES

S ECI 2023 00814

BETWEEN:

ILAN STERNFEIN	Plaintiff
- and -
JONATHAN BLOOM (who is sued as the executor of the estate of MAURICE BRUMER, deceased)	First Defendant
- and -
KEVIN GULEY (who is sued as the executor of the estate of MAURICE BRUMER, deceased)	Second Defendant

Citations

Re Brumer; Sternfein v Bloom & Anor (No 2) [2024] VSC 506

Cases Citing This Decision

0

Cases Cited

12

Statutory Material Cited

0

Dunn v Perpetual Trustee Company Ltd [2021] VSC 755

Bail v Scott-Mackenzie [2016] VSC 563

Ousley v The Queen [1997] HCA 49

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[2024] VSC 506

27 August 2024