Federal Court Rejects Claimant’s Superannuation Appeal

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v Trustee [NAME] Scheme [2006] FCA 373 ADMINISTRATIVE LAW – whether entitlement to [NAME] benefits pursuant to statute – husband and wife separated – maintained an extent of relationship including living together on occasions – wife engaged in full-time employment and received some additional financial assistance from husband – husband predeceased wife – whether statutory meaning of marital relationship fulfilled – whether entitlement to husband's [NAME] established.

De Facto Relationships Act 1984 (NSW) [NAME] 1976 (Cth), ss 8A, 8B, 81 [NAME] (Resolution of Complaints) Act 1993 (Cth), ss 19, 23 Commissioner for [NAME] v Scott (1987) 71 ALR 408applied [NAME] v [NAME] Tribunal (Supreme Court of New South Wales – 26 November 1999 (unreported) compared [NAME] v Social Security Commission (1979-1981) New Zealand Administrative Reports Vol 2 page 75 discussed In the Marriage of [NAME] (1976) 1 Fam LR11, 358 discussed Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690 applied Re [NAME] and Defence Force Retirement and Death Benefits Authority and Brown (1983-1986) 8 ALD 133 discussed [NAME] and [NAME] (No 2) (1976) 9 ALR 401 discussed [NAME] v Sturgeon (1986) 11 NSWLR 454 discussed

[APPELLANT] v TRUSTEE [NAME] SCHEME AND [NAME] SCHEME BOARD

NSD 283 OF 2005

CONTI J

5 APRIL 2006

[APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 283 OF 2005

BETWEEN: [APPELLANT]

APPELLANT

AND: TRUSTEE [NAME] SCHEME

[APPELLANT] [NAME] SCHEME BOARD

[APPELLANT] OF ORDER: 5 APRIL 2006

[APPELLANT]

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 283 OF 2005

[APPELLANT]

APPELLANT

AND: TRUSTEE [NAME] SCHEME

[APPELLANT] [NAME] SCHEME BOARD

[APPELLANT]

JUDGE: CONTI J

DATE: 5 APRIL 2006

PLACE: [APPELLANT] FOR JUDGMENT

Background circumstances 1 This is an appeal against the decision of the [NAME] Tribunal ('the Tribunal') made on 27 January 2005, whereby the Tribunal affirmed the decision of the Trustee of the [NAME] Scheme ('the Trustee' and 'the Scheme' respectively) to deny to the appellant a spouse's [NAME] benefit in consequence of the death of her late second husband [NAME] ('[NAME]') on 4 March 1995. That decision confirmed an earlier decision of a delegate of the [NAME] made on 16 October 1996. It was not until 22 September 2003 that the appellant submitted to the Tribunal the form of Registration of Complaint that led to the decision of the Tribunal of 27 January 2005. 2 The appellant's marriage to her first husband had been dissolved some time before her marriage to [NAME]. There were two children of her first marriage. The appellant married [NAME] on 7 August 1977 and that second marriage was never dissolved prior to the death of [NAME]. There were no children of the appellant's second marriage, but the appellant's children of her first marriage were said to have become effectively [NAME]'s stepchildren, and initially they lived with [NAME] and the appellant after the marriage of [NAME] and the appellant in what became the matrimonial home of that second marriage, subject always to the pre-existing ownership thereof at law of [NAME]. That home continued to remain in the legal ownership of [NAME] until his death on 4 March 1995. 3 It was as early as 1 August 1980 however that the appellant left the matrimonial home and commenced living apart from [NAME] in a separate residence. To adopt the findings of the Presiding Member of the Tribunal '[t]his situation continued up to the date of death nearly 15 years later', though however 'an ongoing relationship continued or recommenced…', as between [NAME] and the appellant, more details to which I will later refer. 4 On 29 January 1987, being more than six years after the separation, [NAME] made his last will and testament whereby he devised and bequeathed the whole of his estate to his mother, and in the event of his mother predeceasing him, to his nine nieces and nephews in equal shares, and whereby he appointed his sister as executrix. No reference was made therein to the appellant. That will and testament of [NAME] remained unrevoked for over eight years until his death on 4 March 1995. His mother did predecease him. The appellant made application to the Supreme Court of New South Wales pursuant to State family provision legislation, being an application resolved by consent arrangements, pursuant to which she obtained on 29 September 1997 an award of $150,000. 5 Until the time of his death, [NAME] was employed by the Department of Immigration and Ethnic Affairs, and in that context of employment he became and remained a member of the Scheme. On 16 October 1996, the Trustee notified the appellant of its decision to reject her claim upon the Scheme for a spouse's benefit consequent upon the death of [NAME], upon the basis that the Trustee was not satisfied that a marital relationship existed or that the appellant was substantially dependant on [NAME] at the time of his death, in either case in the statutory sense of those expressions shortly to appear from relevant legislation. The Trustee subsequently reviewed its decision, doubtless at the instance of the appellant, but decided to reaffirm the same.

The governing legislation and the appellant's Tribunal proceedings 6 The appellant sought the review of the Trustee's decision by the [NAME] Tribunal, pursuant to s 23 of the [NAME] (Resolution of Complaints) Act 1993 (Cth) ('the Complaints Act'). The Tribunal recorded that it had jurisdiction to address and resolve the complaint pursuant to s 19 of the Complaints Act. The appellant's case in outline advanced to the Tribunal was that the Trustee's decision was unfair or unreasonable, for the reason that 'I was in a genuine spousal relationship with my husband at the date of his death … [yet] was denied a benefit by the fund'. As will shortly appear, the nature and extent of that relationship involved matters and events of some complexity. 7 The Scheme is regulated by a trust deed provided for by the [NAME] 1976 (Cth) ('the [NAME]'). The provisions of the [NAME] contained at the material times ss 8A and 8B concerning the meaning of 'marital relationship'and 'spouse who survives a [NAME] person'. The resolution of the present application centres essentially upon the fulfilment of those particular statutory provisions, the full text whereof, so far as potentially or prospectively material, reading as follows: 'Marital relationship 8A (1) For the purposes of this Act, [NAME] had a marital relationship with another person at a particular time if the person ordinarily lived with [NAME] as [NAME]'s husband or wife on a permanent and bona fide domestic basis at that time. (2) For the purposes of subsection (1), [NAME] is to be regarded as ordinarily living with another person as [NAME]'s husband or wife on a permanent and bona fide domestic basis at a particular time only if: (a) the person had been living with [NAME] as [NAME]'s husband or wife for a continuous period of at least 3 years up to that time; or (b) the person had been living with [NAME] as [NAME]'s husband or wife for a continuous period of less than 3 years up to that time and the Board, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with [NAME] as [NAME]'s husband or wife on a permanent and bona fide domestic basis at that time; whether or not the person was legally married to [NAME]. (3) For the purposes of this Act, a marital relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b). (4) For the purposes of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following: (a) the person was wholly or substantially dependent on [NAME] at the time; (b) the persons were legally married to each [NAME] at the time… Spouse who survives a [NAME] person 8B (1) In this section: "[NAME] person" means [NAME] who was, at the time of his or her death, an eligible employee or retirement pensioner. (2) For the purposes of this Act, [NAME] is a spouse who survives a [NAME] person if: (a) the person had a marital relationship with [NAME] at the time of the death of [NAME] ("the death"); and … (3) In spite of subsection (2), [NAME] is taken to be a spouse who survives a [NAME] person if: (a) the person had previously had a marital relationship with [NAME]; and (b) the person did not, at the time of the death, have a marital relationship with [NAME] but was legally married to [NAME]; and … (d) in [the Trustee's] opinion, the person was wholly or substantially dependent upon [NAME] at the time of the death.' As has earlier been seen, the appellant ceased to reside permanently with [NAME] shortly before the third anniversary of their marriage in 1980, whilst still maintaining a relationship with him which was the subject of extensive evidentiary exploration, and which remained that of husband and wife. 8 The Tribunal expressed the following views upon the interpretation and operation of ss 8A and 8B of the [NAME] in relation to the circumstances above narrated: (i) 'marital relationship' for the purposes of the [NAME] is only constituted if the parties have been living together as husband and wife for at least three years or, where they had been so living for less than three years, the Trustee may consider that they should be regarded as having so lived on a permanent basis; (ii) section 8B(3) is critical to qualification for a spouse's pension by [NAME] in the position of the appellant, who is taken to be 'a spouse who survives a [NAME] person' only if: · firstly, the person had previously had a marital relationship with [NAME]; and · secondly, there was no marital relationship at the time of death but the man and woman were still legally married, and · thirdly, the person was wholly or substantially dependent upon [NAME] at the time of death. It is the third factor as to whole or substantial dependence of the appellant upon [NAME] which falls for critical consideration in the present case. The resolution of that third factor was the subject of much evidence, and subsequent debate as to the significance thereof, in terms of the legislative scheme. 9 If the appellant was found to be in a 'marital relationship' or 'a spouse who survives a [NAME] person', she would fall within the scope of s 81 of the [NAME] which stipulates the entitlements of a spouse who survives the death of an eligible superannuated employee before he or she attains the maximum retirement age (such as was the case in relation to [NAME]), sub-section (1) thereof reading as follows: '81 (1) Where an eligible employee who dies before attaining his or her maximum retirement age is survived by a spouse, then… the spouse is entitled: (a) if the spouse does not make an election under section 83 or 84 – to spouse's pension in accordance with section 82 and, where the eligible employee had paid supplementary contributions, a lump sum benefit in accordance with that section; (b) if the spouse makes an election under section 83 – to spouse's pension, and a lump sum benefit, in accordance with that section; or (c) If the spouse is entitled to make an election under section 84 and makes such an election – to a lump sum benefit in accordance with that section.'

The Tribunal's finding as to whether there was a marital relationship for the purposes of ss 8A and 8B of the [NAME] 10 The Tribunal made a threshold finding that the evidence established that despite the circumstance that the appellant and [NAME] 'had separated some 15 years before the date of death and never resumed living in one matrimonial home', the appellant and [NAME] 'did either maintain or re-establish a relationship of some significance which continued up to the date of death'. The Tribunal further found that '[t]he nature of this relationship since the time of separation is fundamental in this case…', and moreover that '… the relevant parts of a Statutory Declaration filed by the Complainant summarising the position… are generally corroborated by evidence on the file from her family and friends', being evidence which '[t]he Tribunal is prepared to accept' and which '[t]he Trustee largely did… also'. That finding as such was uncontroversial. The context of these relevant parts of the statutory declaration, comprising ten paragraphs of some detail, were extracted in full in the Tribunal's reasons for decision. 11 The Tribunal observed that there were three matters not addressed in that evidence of the appellant, those matters being recorded by the Tribunal as follows: (i) the appellant apparently left [NAME] because of domestic violence occasioned by him and that appears to have been a factor in their maintaining separate residences thereafter; the precise reasons why they decided to remain separated were seen by the Tribunal to be of minor relevance; (ii) in October 1985 the appellant decided to seek a divorce, but apparently decided not to proceed when [NAME] made it clear that he did not want that to happen; again the precise reasons for both of those decisions were seen by the Tribunal to be of 'little relevance'; (iii) [NAME] made his last will in 1987, under which the appellant was not made a beneficiary; the will was never revoked or altered before the death of [NAME] on 4 March 1995. 12 The Tribunal discussed the scope of operation of the statutory notion of 'marital relationship' and concluded that whilst there are 'various criteria to consider, there is no hard and fast rule that must be complied with in deciding whether a "marital relationship" existed'. Initially the Trustee drew attention to two authorities of the early decades of the twentieth century which exemplified traditional notions of the matrimonial relationship, but moved promptly thereafter to the more contemporary analysis of juridical decisions of the last three decades, commencing with the discussion approvingly by Evatt CJ, [NAME] and Watson JJ, in the context of their joint judgment In the Marriage of Pavey (1976) 25 FLR 450, of what had been earlier said In the Marriage of [NAME] (No 2) (1976) 25 FLR 260 at 262 by [NAME] J as follows: 'In my view "separation" means more than physical separation – it involves the destruction of the marital relationship... Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships. When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.' The foregoing sentence '[w]hat comprises the marital relationship for each couple will vary' was adopted by the Tribunal as reflective of 'a practical, commonsense point of view'. In that context of authority, the Tribunal thoughtthat '[t]he Complainant and the [NAME], for their own purposes, over a period, fashioned a relationship that suited them and they may well have regarded it as the most appropriate marriage for them in all their circumstances', the Tribunal adding the observation that '[i]t is even quite arguable that it may have been a "marital relationship" at common law, which is what the Complainant's lawyers seem to have been submitting'. So much was described by the Tribunal however as not determinative of the issue presently arising, and understandably so, in the light of the critical words of s 8A, which at least include '… the person ordinarily lived with [NAME] as [NAME]'s husband or wife on a permanent and bona fide basis'. 13 As to the import and operation of 'wholly and substantially' appearing in ss 8A(4)(a) and 8B(3)(d), I was referred to an analysis of the statutory notion of whole or substantial dependency appearing in the reasons the joint judgment of [NAME] and [NAME] JJ in Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690, being a decision made otherwise than in a matrimonial context. After reference to usages in statutory contexts of [NAME], social security and bankruptcy legislation, the following appears at [11]-[12] of that joint judgment: '[NAME] case, and cases which have followed it, treat "substantially" in the phrase "wholly or substantially dependent" as involving the notion of predominance. When the [ADDRESS] in Scott adopted the paraphrase of [NAME] who is "primarily, essentially or in the main" dependent upon another person, in our opinion the Court was describing, in slightly different ways, the same idea, rather than expressing three slightly different ideas. That colours or confines the signification of "essentially". We respectfully disagree with [the primary judge's] conclusion … that A is wholly or substantially dependent on B as well as on C. A is dependent upon both, but is not wholly or substantially dependent on B because it is upon [NAME] that [NAME] is mainly dependent. [NAME] contribution may be essential to [NAME] support, the notion of predominance which is implicit in the phrase "wholly or substantially" dependent, is lacking.' Although that dicta occurred of course in relation to a different legislative context, its emphasis on 'the notion of predominance' seems to me to carry through by way of assistance to the resolution of the issues of legislative construction here arising.

The Tribunal's discussion and reasons in more detail for its conclusion upon the first issue arising as to whether there was a 'marital relationship' for the purposes of ss 8A and 8B of the [NAME] 14 The Tribunal considered that 'the real question is not whether the ultimate relationship of the [appellant] and the [NAME] was a "marital relationship" at common law, but rather whether it was a "marital relationship" for the purposes of ss 8A and 8B'of the [NAME], which the Tribunal described 'as a materially different issue'. The Tribunal's reasoning continued to the effect that for the purposes of the [NAME], s 8A(1) stipulates that there is a 'marital relationship if two people ordinarily lived together as husband and wife on a permanent and bona fide domestic basis at the relevant time, and further that it was 'fairly clear' that those s 8A(1) terms such as 'ordinarily', 'lived together', 'permanent' and 'bona fide domestic basis' imported requirements over and above those that may be necessary for an undefined marital relationship, and should not be regarded as merely surplusage. There is clear force in those observations. 15 Accordingly the Tribunal reasoned that just as in normal parlance, it seemed to be unlikely that the relationship between the appellant and the [NAME], whereby they occupied separate residences, but saw one another regularly and even slept together on occasions, was one that would normally be described as 'ordinarily living together', or necessarily 'permanent, or as having a 'bona fide domestic basis', within par (b) of s 8A(2). The Tribunal considered that the following dictum of Barker J in [NAME] v Social Security Commission (1979-1981) 2 NZ AR 75 at 80 to be here apposite, involving as it did the operation of the expression 'living together on a domestic basis' appearing in certain New Zealand social security legislation as follows, '… the Commission may in its discretion… regard as husband and wife, any man and woman who, not being legally married, are in the opinion of the Commission living together on a domestic basis as husband and wife and may in its discretion… terminate or reduce… any benefit already granted accordingly…'. As to the operation of that expression, the Commission contended as follows: 'Obviously all the elements of consortium need not appear in every relationship under [the legislative provision] just as they need not necessarily appear in every marriage. However, the Legislature has chosen to emphasise one element of consortium ie the "living together under one roof"aspect by its use of the words "on a domestic basis". The section requires more than … "cohabitation"… and more than not "living apart"… [but]… has gone out of its way to add these limiting words to an otherwise fairly broad and flexible concept.' 16 As I have already indicated, the Tribunal considered that there was no qualifying marital relationship between the appellant and [NAME] within s 8A(1) of the [NAME] essentially for the reasons I have summarised as well as cited, nor within what may be described as the deeming and illustrative provisions of s 8A(2). Accordingly in the Tribunal's opinion, whether the Trustee's decision was fair and reasonable in its operation depended on whether the circumstances of the appellant came within the scope of s 8B(3) of the [NAME]. So much also involved or concerned the issue whether the appellant was 'wholly or substantially dependent' on [NAME] at the time of his death within s 8A(4), being the further issue to which I will now turn. 17 For the purposes of addressing that further issue, the Tribunal accepted, as indeed the Trustee pointed out, the extent of variation in the closeness of the relationship between the appellant and [NAME], over the years, but considered that '… it is the period nearest to [the time of death] that is the most important', since '[e]ven if earlier in the relationship the [appellant] was not so dependent, that is irrelevant if she was so dependent at the time of death', and the Tribunal considered accordingly 'that it is most appropriate to concentrate on the last years and, having regard to s 8A(2) of the Act, the last three years, which is from 1992 on'. 18 The Tribunal made the following further evidentiary findings from the appellant's statutory declaration: '· it is clear that the relationship between the Complainant and the [NAME] was quite close and regular in this period, although, in the Tribunal's opinion, still short of living together in the bona fide domestic relationship as required by s 8A. · in 1992, the [NAME] gave the Complainant "more than $2,000" plus birthday and [NAME] gifts. · the Complainant states, "If it were not for the support the [NAME] gave me, I would have had to have worked weekends". · the position for most of 1993 is not stated in any detail. · they spent the 1993/94 Christmas/New Year period together and the [NAME] made gifts to facilitate a visit from the Complainant's daughter and her children. Also "for the rest of the year, I saw [NAME] every weekend" and in June 1994 he bought her a new car. · the [NAME] continued to see the Complainant and "he was giving me $100 every couple of weeks". Also "this support continued up until his death". In addition, there is evidence that there were public aspects of the relationship, as they often appeared together in public as a couple and the [NAME] would introduce the Complainant as "my wife".' In addition the Tribunal observed in that context, '... there is evidence that there were public aspects of the relationship, as they often appeared together in public as a couple and the [NAME] would introduce the Complainant as "my wife"'. 19 The Tribunal further expressed the view that when the [NAME] speaks of dependency, 'it is referring primarily to financial dependency, so it is the sums of money paid by the [NAME] to the Complainant in the period prior to his death that seem the most important consideration'. Accordingly the Tribunal considered that the relevant question was whether the Complainant was 'wholly or substantially' dependent on [NAME], and moreover given the appellant's evidence as to earning a gross yearly income of approximately $26,000, it was plain in any event that she was not wholly dependent on [NAME]. The question then became whether she was 'substantially' dependent on [NAME]. The Tribunal considered that this further issue involved 'some difficulty'. 20 The Tribunal indicated its awareness moreover that '… it is common in many [NAME] [NAME] schemes for the dependence test for similar situations to be whether the claimant was "wholly or partially" dependent on [NAME]' and where 'quite small regular payments have been found to be sufficient to constitute partial dependency'. The Tribunal was referred to [NAME] v [NAME] Tribunal (Supreme Court of New South Wales – 26 November 1999 – unreported), where [NAME] had died about the same time as the [NAME], and where the mother who worked and earned 'some $39,000 per annum' was held to be partially dependent on her son who paid her $30 per week board each week, being payments that were made regularly and could apparently be relied upon, even though they may not have made a great difference to the mother's standard of living. Nevertheless the Court held as follows: 'The payment of that amount augmented her [NAME] income and, to that extent, she was dependent upon [NAME] for receipt of some of her income.

Accordingly, she was "partially dependent" upon the payment made by [NAME].' The s 8A(4)(a) tests refer to 'wholly or substantially dependent on the [NAME] person at the time'. 21 In the present case, as the Tribunal pointed out, in the final period of time prior to his death, [NAME] was giving the appellant about $100 per fortnight or $2,600 per year, representing an additional ten per centum (10%) on her gross income derived. The Tribunal further pointed to evidence that the appellant had found a need for further income, as a consequence whereof she had commenced weekend work, but ceased that work at [NAME]'s request. In that context, the Tribunal drew the following conclusions: 'It seems that it was the payments made to her by the [[NAME]] that enabled her to do this. Moreover, the $100 per fortnight seems to have become fairly regular and it may well be that the [appellant] came to rely upon it (otherwise, she is unlikely to have given up the weekend work). If the test here were partial dependency, on the basis of [NAME], such payments might well be sufficient for dependency to exist. But in this case, the test is "wholly or substantially dependent", not "wholly or partially" (or even just "partially") dependent. The question is whether these tests are virtually the same or significantly different. Both have quantitative aspects, albeit of uncertain dimensions. The Tribunal sees issues like whether the payments were secured in some way to the [appellant] as being of less importance than whether they were relatively regular in such a way that she reasonably rely upon them continuing.' 22 The Tribunal next drew attention to the following dicta of the Administrative Appeals Tribunal (comprising Deputy President R A Layton and [NAME] and J T B Linn as members) in Re [NAME] and Defence Force Retirement and Death Benefits Authority and [NAME] (1985)8 ALD 133 at 136, in a context of eligibility for defence force retirement pension and death benefits, where dependency was explained as 'a financial concept as distinct from an emotional concept…'. To similar effect in Commissioner for [NAME] v Scott (1987) 71 ALR 408, the notions of 'financial dependency', 'necessities of life' and 'lower order needs' were emphasised. Those authorities were apparently cited to the Tribunal by the Trustee for the propositions that the statutory notion of 'dependence' the subject of ss 8A and 8B of the [NAME] relates to financial support for 'necessities of life' or 'lower order needs' and that 'financial dependence', in the situation of an applicant for relief meant being 'primarily, essentially or in the main dependent upon the person'. Moreover the words 'in the main' were said by the Tribunal to indicate that total dependence is not required, and further that the Tribunal indicated its expectation that so much would be less so for the notion of 'substantially dependent' (the s 8A(4)(a) expression) than for financial dependence without qualification. As for the terms 'necessities of life' and 'lower order needs', the Tribunal considered on the [NAME] hand that the same should not be taken to mean 'bare necessities', that is, the minimum needed to survive in indigent circumstances. [NAME] was said by the Tribunal to seemingly support the view in any event that a more reasonable interpretation should be adopted having regard to the person's station in life, and the Tribunal observed indeed in that context of its reasoning as follows: 'There is no suggestion from the evidence that the [appellant's] lifestyle was excessive, yet she appears to have been having some difficulties in meeting her normal expenditure without the financial support given by the [[NAME]].' 23 A further difficulty distilled by the Tribunal with the s 8A(4) term 'substantially dependent' was that it appeared to be capable of more than one meaning,that is a numerical meaning under which the support must be a substantial proportion of the appellant's income. That might well mean, so the Tribunal pointed out, that 12.5% of her total net income represented by [NAME]'s reasonably regular contributions would be insufficient. Moreover as the Tribunal went on to postulate, since [NAME]'s contributions were reasonably regular, it might be argued that in a broad sense, they played a substantial part in her being able to maintain a reasonable, but not excessive, standard of living. Also the Tribunal thought that '[t]he fact that she gave up weekend work at the [[NAME]'s] request might arguably support such a view'. A yet further factor distilled by the Tribunal was the beneficial character of the [NAME]. 24 Nevertheless in the Tribunal's concluding view, the position here involved was properly addressed and dealt with by [NAME], the reasoning whereof the Tribunal purportedly adopted. The Tribunal summarised the reasoning in [NAME] on what may be described as the 'wholly or substantially dependent' issue (that is, picking up reference to 'wholly and substantially' in s 8A(4)(a)) as follows: 'In that case, the Federal Court was considering the meaning of the expression "wholly or substantially dependent" in the definition of "spouse" in s 3 of the Relevant Act (as it then was; the current s 3 does not contain a definition of "spouse"). [ADDRESS] came to the view that where the word "substantially" finds its place in the phrase "wholly or substantially dependent", it must be construed having regard to the whole phrase. This was because where the word "substantially" is placed within that phrase, connotations of the term "substantially" is governed by the conjugational position of the word "wholly" immediately before it. In [NAME] words, that "substantial" does not stand alone, but is related to "wholly". On this basis, the Court came to the view that "substantially" does not simply mean something more than trivial, minimal or nominal, instead it meant in relation to [NAME] in the expression "wholly or substantially dependent" that the person is primarily, essentially or in the main dependent upon [NAME] (that is, upon the [NAME]). [ADDRESS] also cautioned against the use of percentage and instead suggested as the approach to consider whether the person (the Complainant) is primarily, essentially or in the main dependent upon the [NAME] person (the [NAME]) in the context of that particular relationship.' The Tribunal proceeded to point out that the foregoing view as to whole or substantial dependence, summarised by the Full Federal Court in [NAME],was applied in the context of the joint judgment of Branson and [NAME] JJ in Graovac. 25 The Tribunal concluded its review determination and reasons for decision of 27 January 2005 below as follows: 'The Tribunal is of the opinion that, notwithstanding the various arguments previously considered, the Trustee's decision to reject the Complainant's claim for a spouse's benefit consequent upon the death of the [NAME] on the basis that there was neither a marital relationship or substantial dependency is fair and reasonable in its operation to the Complainant and [NAME] interested parties in the circumstances. This is because it would not be fair and reasonable for the extent of the Complainant's financial reliance upon the [NAME] at the time of death to be classed as "primarily, essentially or in the main dependent" on the [NAME], notwithstanding that it may have been of some significance to her. The decision of the Trustee will therefore be affirmed.' That affirmation of the Tribunal was made pursuant to s 37(1)(a) of the Complaints Act.

The Appellant's submissions on appeal 26 The appellant's grounds of appeal, and the accompanying particulars, were framed with precision, and require reproduction in full (omitting the introduction): '2. The Tribunal applied the wrong test to what constituted a "marital relationship". PARTICULARS a. The Tribunal held that although the Appellant and [NAME] lived in a "marital relationship at common law" in order for them to be seen as "ordinarily (living) together as husband and wife on a permanent and bonafide basis" the couple needed to be living under the same roof. There is no basis in the relevant legislation to limit the circumstances in such a way.

3. The Tribunal applied the wrong test in relation to what constitutes "dependancy". PARTICULARS a. the Tribunal only considered financial dependency and failed to consider whether the Appellant was emotionally and/or physically dependant on [NAME].

4. The Tribunal failed to properly apply the law to the facts as found. PARTICULARS a. The Tribunal found that the Appellant was dependent upon [NAME] for 12.5% of her income which had enable (sic) her to give up her weekend work. A proper application of the law to this finding of fact would lead to the conclusion that the Appellant was substantially dependent financially upon [NAME].' 27 As to the statutory notion of 'marital relationship', the appellant asserted that the Tribunal's analysis and discussion of the issues arising excluded from any consideration on its part of the issue said to arise as to whether a 'marital relationship' at common law, or as described another way by the appellant, a de facto relationship, came within the statutory description 'lived with [NAME] as [NAME]'s husband or wife on a permanent and bona fide domestic basis', for the purpose ofs 8A(1). It was pointed out by the appellant in that regard that in [COMPANY], a de facto relationship comes within the concept of husband and wife. Or as put by the appellant in the course of his subsequent opening oral submissions, '… the only way that those two paragraphs [of s 8A(2)] can be understood is, if you have been living as the [NAME] person's husband or wife for a continuous period of at least 3 years up to that time – and relevantly in this case it is the time of the husband's death – that is all that is required. That [is] if you have met the 3-year test then you are taken to have been in a marital relationship, ordinarily living with [NAME] as [NAME]'s husband or wife on a permanent and bona fide domestic basis at that time'. 28 I would observe at once that the appellant's submissions, as so framed at the outset would afford insufficient regard to the s 8A(1) expression 'if the person ordinarily lived with [NAME]'. It is true that although in the language of the oral submission above cited, counsel for the appellant initially omitted the word ordinarily by way of prefix to lived, yet subsequently used the same in his ensuing assertion '… if you have met the 3-year test then you are taken to have been in a marital relationship, ordinarily living with [NAME] as [NAME]'s husband or wife on a permanent and bona fide domestic basis at that time…', the subtlety of that latter purported explanation, by way of addition on the second occasion of the word ordinarily, must not be overlooked. In short, counsel for the appellant transposed the word ordinarily from its explicit qualification of lived in the text of s 8A(1) from the function of actuality to that of deeming. In so doing, the appellant radically transposed, if not also distorted, the operation of the scheme of s 8A. 29 That is not to imply that the appellant's submission involved any subtlety of deception in construction. As counsel for the appellant then proceeded to purportedly explain in his oral submissions: 'Then, if those words [referring thereby to the s 8A(1) expression "… ordinarily lived with [NAME] as [NAME]'s husband or wife on a permanent and bona fide domestic basis at that time"] are imported into paragraph (a) then paragraph (b) really has a peculiar if, indeed, no meaning, because it would then in effect say: If she had been living in that sense for more than 3 years it also applies to you, although if you have been living in it for less than 3 years it also applies. So in my submission, the proper starting point to ask is simply whether the person – in this case the appellant – had been living with the [NAME] person, her husband – and there is no dispute that they remained married at the time – as [NAME]'s husband or wife for a continuous period of at least 3 years. Now, in my submission, the Tribunal failed to do that.' 30 The appellant submitted in any event that what constitutes 'living together on a bona fide basis' is a matter to be determined on the facts of each case, drawing attention thereby to dictum of [NAME] J in [NAME] v Sturgeon (1986) 11 NSWLR 454 at 458-459, where the following appears: '… it seems to me that each case will involve the Court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following: 1. the duration of the relationship; 2. the nature and extent of the common residence; 3. whether or not a sexual relationship existed; 4. the degree of financial interdependence, and any arrangements for support, between or by the parties; 5. the ownership, use and acquisition of property; 6. the procreation of children; 7. the care and support of children; 8. the performance of household duties; 9. the degree of mutual commitment and mutual support; 10. reputation and "public" aspects of the relationship.' Those observations in [NAME] were made in the context of the De Facto Relationships Act 1984 (NSW), where the statutory definition of 'de facto relationship' meant 'the relationship between de facto partners, being the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each [NAME]'. Sections 8A and 8B of the subject legislation were of course enacted in 1992, and the text thereof is more specific than the earlier State of New South Wales legislation addressed in [NAME]. Part of the present statutory criteria addresses inter alia the s 8A(4)(d) requirement to consider evidence establishing whether 'the persons jointly owned a home which was their usual residence'. 31 In any event, the appellant's submissions continued to the effect that by limiting itself to a consideration of whether there was a common residence, the Tribunal applied the wrong test and failed to take account of [NAME] significant indicators such as what the couple themselves considered their relationship to be and what others, who knew the couple, considered the relationship to be. I have encountered difficult with that submission by the appellant, which to my perception derives insufficient support from the text of ss 8A and 8B, whether explicitly or implicitly. 32 Thereafter the appellant referred to the opinion of the Tribunal '…that when the [[NAME]] Act speaks of dependency it is referring primarily to financial dependency, so it is the sums of money paid by the [NAME] to the Complainant in the period prior to his death that seem the most important consideration', and contended that in so finding, the Tribunal ignored the ordinary meaning of the word dependency which can include emotional and/or physical dependency. Emotional dependency is not readily susceptible of course to financial measurement. The criteria described by ss 8A and 8B are necessarily or at least expediently objective, and although subjective factors may well be sometimes relevant in evidentiary terms in order to throw light upon the satisfaction or otherwise objectively of the statutory requirement as to 'ordinarily living on a permanent and bona fide domestic basis', it is not apparent that the same may compellingly enter the ultimate assessment or computation of a pension entitlement of a surviving spouse or partner otherwise existing pursuant to the [NAME]. 33 The appellant submitted alternatively if that financial dependency was the primary consideration, there remained secondary considerations which were not identified by the Tribunal nor taken into account. The Tribunal was said to have found that the payments made to the appellant by her husband were relied upon by her but dismissed that reliance because the payments amounts to only 12.5% of her income and were not 'primarily, essentially or in the main dependent upon another person'. The Tribunal was further said to have incorporated in that context reference to the definition of spouse formerly contained in s 3 of the [NAME], which had read as follows: '… in relation to [NAME] who has died and was, at the time of his death, an eligible employee… (b) [NAME] who was legally married to [NAME] at the time of the person's death but who was not living with the person on a permanent and bona fide domestic basis at that time, and who, in the opinion of the Commissioner, was wholly or substantially dependent upon [NAME] at that time.' In so finding however, as I have earlier mentioned, the Tribunal pointed out that the statutory test as to 'wholly or substantially' did not mean wholly or partially dependent, though it did involve 'quantitative aspects, albeit of uncertain dimensions'. 34 The Tribunal's finding was submitted by the appellant to be that the payments to the appellant by [NAME] were relied upon in the Tribunal proceedings below, yet the Tribunal dismissed that reliance because the payments amounted to only 12.5% of her income and were not primarily essentially or in the main dependent upon [NAME], the appellant thereby seemingly invoking by paraphrase reference to s 8A(4)(a) of the [NAME]. 35 It was then submitted by the appellant that dependence is a matter not to be determined by a mathematical formula, yet the Tribunal was said to have inferred that the payments must exceed 50% of the income of [NAME] before that person can be said to be dependent upon them. In that context, it was pointed out by the appellant that the evidence was that the appellant was able, by reason of the payments, to give up weekend work, and that those payments were therefore significant in allowing the appellant to maintain her modest lifestyle. 36 The appellant submitted further that if the appellant was effectively given two days per week leisure by her husband's payments, such payments, and the result they provided, were capable of providing substantial dependence of the appellant on her husband. Yet by adopting a purely financial analysis of dependence, so her submissions continued, the Tribunal ignored the possibility of actual emotional and physical dependence on her husband, and did not analyse the degree of her actual dependence on her husband and upon his payments to her, nor her physical dependence on her husband's payments to maintain her modest lifestyle. Moreover in confining its consideration to direct financial dependence only, the appellant contended that the Tribunal misdirected itself as to the proper test to be applied, and therefore applied the wrong test.

Conclusions 37 In my opinion, the decision of the Tribunal below, and the Tribunal's reasoning in support of and leading to that decision, demonstrated a persuasive and viable application and operation of the complex statutory test as to the existence or otherwise of a 'marital relationship' within the scope and for the purposes of the [NAME] and ss 8A and 8B thereof in particular, exemplifying as that test does in subsections (1) and (2) of s 8A in particular the notion of having 'ordinarily lived with [NAME]' at a particular time, and to have done so 'as [NAME]'s… wife on a permanent and bona fide domestic basis at that time…, whether or not the person was legally married to [NAME]',and a consideration of the evidence inter alia as to being 'wholly or substantially dependent on [NAME]',and so beingfor the minimum period of time stipulated by s 8A. 38 Thus one of the two foundations for the entitlement of [NAME] to assert the existence of a 'marital relationship' with another is that the former 'had been living with [NAME] as [NAME]'s husband or wife for a continuous period of at least 3 years up to' a particular time for the purposes of the operation of ss 8A and 8B. The [NAME] is the alternative of having so lived 'for a continuous period of less than 3 years up to that time', butin circumstances constituting in the opinion of the Commissioner 'that the person ordinarily lived with [NAME] as [NAME]'s husband or wife on a permanent and bona fide domestic basis'. The circumstances of the appellant established by the evidence, as found by the Tribunal, fell short however of those statutory requirements essentially for the reasons postulated by the Tribunal. To the extent that living together at times or on occasions did occur, the conclusion of the Tribunal was that so much did not constitute at least the required continuity prior to the death of [NAME]. That shortcoming was because such living together as did occur was not for the duration of 'a continuous period of at least 3 years up to that time [of death]', as required by par (a) of subs 8A(2); nor in the opinion of the Commissioner was it open to be found that the appellant 'had been living with [[NAME]] as [NAME]'s… wife for a continuous period of less than 3 years up to that time', such that, 'having regard to any relevant evidence, [the appellant] ordinarily lived with… [[NAME] as his] wife on a permanent and bona fide domestic basis at that time'. 39 Moreover it was not open to the appellant, in the light of the testimony of the appellant established by the Tribunal as I have sought to set out or summarise, to assert fulfilment of the scheme of s 8A by the postulation, which was seemingly advanced by counsel for the appellant in oral address, that compliance with the legislation is satisfied by the notion merely that [NAME] has been living as another person's husband or wife for a continuous period of at least 3 years up to the relevant time (being in this case of course the death of the husband). That postulation inherently involved a notion of deeming neither explicitly nor implicitly stipulated by s 8A, as is I think apparent from the purported interpretative hypothesis of counsel for the appellant further advanced in oral address to that effect, that if the 3-year test has been otherwise met, an applicant for relief is to be taken to have been ordinarily living with [NAME] as [NAME]'s husband or wife 'on a permanent and bona fide domestic basis at that time' within subs 8A(1). In the context of both paras (a) and (b) of subs 8A(2), an underpinning assumption or factor required for crystallisation of entitlement is the statutory factor of 'a continuous period of no less than 3 years', being a period of that description and dimension during which one person 'lived with' [NAME] as '[NAME]'s husband or wife'. 40 The fallacy of the appellant's approach to construction of the statutory language actually employed, and so employed in the sequence of use appearing, was exemplified by the appellant's submission to the Court, in the course of final address, as follows: '… the proper starting point to ask is simply whether the person – in this case the appellant – had been living with the [NAME] person, her husband – and there is no dispute that they remained married at the time – as [NAME]'s husband or wife for a continuous period of at least 3 years… the Tribunal failed to do that.' For one matter, the appellant's approach would render otiose the statutory expression 'ordinarily lived with' appearing in subs 8A(1) and (2)(b). The appellant did not, of course, propound reliance upon the 'living with' meaning extended by subs 8A(5), which significantly also to the Tribunal's approach to construction, provides for two confined deeming operations as to any period of 'temporary absence' or 'absence because of the person's illness or infirmity'. 41 The appellant's case in relation to the facts and circumstances thereof was put additionally and alternatively precisely as I have reproduced below because of the need for literal precision in the light of the statutory language: (i) '… except for the separate households, everything else they did, they way they saw their relationship'; (ii) '… those that knew them saw their relationship, the way the appellant's children and grandchildren who were the step-children and step-grandchildren of [NAME], saw the relationship and saw their relationship with [NAME] …'; (iii) the appellant '… had been living with [[NAME]] for a continuous period of at least 3 years up to date time', since there was '… no requirement or indeed there is no reason to imply in (a) that she had been living under the same roof with that person'; (iv) '[t]hey may spend whatever time they can together, they may see themselves as married, they may see that as the way that they have chosen to conduct their life'; moreover the '… mere fact that they [were] separated…' was not necessarily enough to disqualify the appellant. 42 However it seems to me that in relation to each of those asserted factors, the same may only be justified by an impermissible enlargement effected to the s 8A requirements as to '… ordinarily lived with [NAME] as [NAME]'s husband or wife on a permanent and bona fide domestic basis' at any material time, particularly in circumstances where the decision-maker must undertake its task of decision-making to 'a continuous period of at least 3 years up to [the material time]', and further do so upon the footing of the statutory notion as to 'wholly or substantially dependent' by one person on another (see again par (a) of subs 8A(4)). Moreover the Tribunal's approach to construction gains further support implicitly from the nature and limited scope of the exceptions the subject of subs 8A(5). 43 The appellant made a further 'major complaint… that the Tribunal referred to the New Zealand case of [NAME],' though not in relation to the passage from its reasons which I have earlier cited therefrom, but in relation to an earlier passage in those reasons at 79, where the following appears: 'However, I cannot ignore the additional words of the statute "on a domestic basis". I consider that these words require a living together under the same roof on a basis of some permanence.' It is apparent, from the Tribunal's citation of that passage, that the Tribunal had in mind part of the text of par (b) of subs 8A(2), where reference appears to '…ordinarily lived with [NAME] as [NAME]'s husband or wife on a permanent and bona fide domestic basis'. It does not seem to me to have been inapposite to cite, whether for comparison or illustration of reasoning, that instance of judicial consideration of what was a not dissimilar text of statutory regulation. In the normal course, for a married couple to live under the same roof would at least assist exemplification as to what might constitute in certain circumstances 'ordinarily lived' by a '… husband or wife on a permanent and bona fide domestic basis' with the [NAME]. Of course exceptional circumstances, such as residing in accommodation whilst absent for instance interstate on business, or in the course of visitation overseas of relatives, or in the course of hospitalisation, would normally fulfil in any event the subs 9A(5) circumstance of 'temporary absence'. 44 It follows from those conclusions that the appeal should be dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 5 April 2006 [NAME]: [APPELLANT] Solicitor

Counsel for the [APPELLANT]: [[APPELLANT]]

Solicitor for the [APPELLANT]: Australian Government Solicitor

Date of Hearing: 29 November 2005

Date of Judgment: 5 April 2006