Federal Court of Australia

Nguyen v Australian Financial Complaints Authority [2024] FCAFC 77

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 2 November 2023 and 5 December 2023 in matter VID 442 of 2023 be set aside and, in their place, it be ordered that:

(a)    the second respondent’s notice of appeal from a tribunal dated 15 June 2023 be dismissed; and

(b)    the second respondent pay the appellant’s costs thereof.

3.    The second respondent pay the appellant’s costs of the appeal.

4.    In each case, the costs be paid in an amount to be assessed in default of agreement in accordance with the court’s costs practice note (gpn-costs).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    Prior to his death by suicide in September 2019, Mr Pino Corbisiero held a policy of insurance with NM Superannuation Pty Ltd, the third respondent (hereafter, “the Trustee”). Under the terms of that policy, a “death benefit” was to be paid upon his death. As at September 2019, it was valued at $1.122m.

2    On 6 December 2018, Mr Corbisiero signed and provided to the Trustee (or, perhaps, to its nominee or predecessor) a “beneficiary nomination form”, pursuant to which he made a “binding death benefit nomination” in favour of his then de facto partner, the appellant (Mr Nguyen). Pursuant to that instrument (the “Nomination”), Mr Corbisiero nominated Mr Nguyen to receive 100 per cent of the “death benefit” payable in the event of his death (hereafter, the “Death Benefit”).

3    Before the court presently is a dispute that has arisen as between Mr Corbisiero’s mother, the second respondent (who acts as the executrix of her late son’s will), and Mr Nguyen. The dispute concerns the payment of the Death Benefit; and, more specifically, whether Mr Nguyen remained Mr Corbisiero’s de facto partner at the time of the latter’s death.

4    Some context is required. Very early in the morning on the day of his death, Mr Corbisiero sent a text message to his sister (hereafter, the “Text Message”) in the following terms (errors original):

This is my will and testament as from 1st of September to whom it may concern I want to leave all my property and assets to my family to my brother and sister and my nieces and nephew only and no one else. James receives nothing of my assets all for he has put me in the position or stage of my life where I had enough. Can I also ask my family this only be family thing I want no friends of james to be there what so ever. I am very sorry I Done this but I need peace and hopefully I get that now really sorry but please understand I happier now than before.

5    The second respondent, Mrs Corbisieri, maintains that, at the time of her son’s death, the relationship that he had had with “James” (Mr Nguyen) had terminated. As will be seen, that is a matter of some significance, as the Death Benefit was relevantly payable to Mr Corbisiero’s “spouse”. Mr Nguyen maintains that his relationship with Mr Corbisiero had not terminated and that he remained entitled to the Death Benefit at the time of the latter’s death.

6    That dispute was the subject of consideration by the first respondent, the Australian Financial Complaints Authority Limited (“AFCA”). At times relevant to this appeal, AFCA was the operator of an external dispute resolution scheme that was the subject of a ministerial authorisation issued under s 1050 of the Corporations Act 2001 (Cth) (the “Corps Act”).

7    AFCA was brought upon to consider the dispute that had arisen as between Mrs Corbisieri and Mr Nguyen following two decisions of the Trustee concerning the payment of the Death Benefit. By each, it was resolved that Mr Nguyen was not Mr Corbisiero’s “spouse” at the time of the latter’s death.

8    Unhappy with that determination, Mr Nguyen brought a complaint before AFCA. AFCA was endowed with jurisdiction to affirm, set aside, vary or re-decide the Trustee’s determination. By s 1055 of the Corps Act, the exercise of those powers turned upon whether or not it was satisfied that the determination was “fair and reasonable in all [of] the circumstances”.

9    By a decision dated 19 May 2023 (the “AFCA Decision”), AFCA resolved to set aside the Trustee’s determination on the basis that it was not fair and reasonable. In its place, it resolved to award Mr Nguyen 100 per cent of Mr Corbisiero’s Death Benefit. It did so on the basis that, at the time of his death, Mr Corbisiero remained in a de facto relationship with Mr Nguyen and was, therefore, entitled to be paid the Death Benefit in accordance with the Nomination.

10    Pursuant to s 1057 of the Corps Act, an “appeal” from that determination lay on questions of law to this court. By notice dated 15 June 2023, Mrs Corbisieri commenced such an action. By it, she charged AFCA with having erred in law by failing to conclude that her son’s relationship with Mr Nguyen had terminated by the time of his death. As much was said to be apparent from the Text Message.

11    The learned primary judge agreed. His Honour concluded that AFCA had erred in law by failing to construe the Text Message as proof that his relationship with Mr Nguyen had terminated. His Honour set the AFCA Decision aside and remitted Mr Nguyen’s initial complaint back to AFCA for further consideration: Corbisieri v NM Superannuation Proprietary Limited [2023] FCA 1319 (the “Primary Judgment”). Separate orders were made subsequently in relation to costs: Corbisieri v NM Superannuation Proprietary Limited (No 2) [2023] FCA 1531.

12    By an amended notice of appeal dated 22 December 2023, Mr Nguyen appeals from the whole of the Primary Judgment and the costs orders that were made thereafter. As might be expected, AFCA and the Trustee filed submitting notices. Mrs Corbisieri sought to defend the Primary Judgment.

13    For the reasons that follow, the appeal should be allowed.

The rules governing payment of the death benefit

14    The legislative framework governing this court’s jurisdiction to determine the present controversy (both at first instance and on appeal) has already been adverted to and was not controversial. Nothing further need be said of it.

15    It is convenient instead to record the terms pursuant to which Mr Corbisiero’s Death Benefit was payable. They were contained within a deed of trust; more specifically, within rules applicable to that trust that formed part of that deed. There is no controversy as to the form or operation of those rules (hereafter, the “Rules”).

16    Part 7 of the Rules was entitled, “Payments and transfers of benefits”. Relevantly, it contained the following rules, namely:

Death Benefits – Non-Lapsing Nomination

…

7.10C     Subject to rule 7.10D, if all the requirements of the Superannuation Law have been met, where:

(a)     the Trustee is in receipt of a current, valid Non-Lapsing Nomination; and

…

the Trustee must pay the deceased Member’s Death Benefit to the person or persons listed in the Non-Lapsing Nomination.

7.10D     A Non-Lapsing Nomination ceases to be valid and effective upon the earlier of the following events:

…

(d)     the date the Member divorces or the Member’s de-facto relationship (including with a person of the same sex) terminates;

…

17    It was not controversial before the primary judge—nor before this court on appeal—that the Nomination was a “Non-Lapsing Nomination” of the kind to which rr 7.10C and 7.10D of the Rules referred. By operation of r 7.10A, such an instrument was apt to require payment of a Death Benefit to a member’s nominated “Legal Personal Representative and/or Dependants”.

18    “Dependant” was defined by r 1.1 of the Rules. Relevantly, a “[d]ependant” of a person included that person’s “Spouse”. “Spouse” was also defined by r 1.1; relevantly, to include a “…person who, although not legally married to [a] person, lives with the person on a genuine domestic basis in a relationship as a couple”.

19    Thus, Mr Nguyen’s entitlement to the Death Benefit turned upon the application of r 7.10D(d) of the Rules. The question that arose for AFCA’s consideration (and for the consideration of the Trustee before it) was whether Mr Nguyen was Mr Corbisiero’s “[s]pouse” at the time of the latter’s death; and, perhaps more specifically, whether the relationship between the two had, by then, “terminate[d]”.

20    The Rules otherwise did not define what amounted to living “on a genuine domestic basis in a relationship as a couple”, nor what circumstances might bespeak the “terminat[ion]” of such a relationship.

The AFCA Decision

21    In determining that, at the time of his death, Mr Corbisiero remained in a de facto relationship with Mr Nguyen, AFCA had occasion to consider those concepts (“genuine domestic relationship” and whether the relationship between the two had “terminate[d]”). Relevantly for present purposes, it made the following observations:

[Mr Nguyen] says he and [Mr Corbisiero] met in March 2006 and moved in together one month later. He says they were informally married in an overseas country in 2013 and their relationship continued until [Mr Corbisiero] died. He says [Mr Corbisiero] made a foolish and rash decision to end his life following a night of heavy drinking and they had not separated.

[Mrs Corbisieri] and [Mr Corbisiero]’s siblings say the relationship between [Mr Corbisiero] and [Mr Nguyen] ceased being a de facto or genuine domestic relationship from 2016-17 and certainly by the date of [Mr Corbisiero]’s death. Although [Mr Corbisiero] and [Mr Nguyen] had remained friends, they say [Mr Corbisiero]’s final message to his sister indicates the relationship had come to an end. A statutory declaration from an ex-lover JF was provided, which explains [Mr Corbisiero] had indicated he wanted to leave [Mr Nguyen] and that he [JF] and [Mr Corbisiero] may get back together once he could break away from [Mr Nguyen].

Although the panel acknowledged [Mr Corbisiero]’s message to his sister just prior to his death, it did not consider this terminated the relationship between him and [Mr Nguyen]. This is because relationships have their ups and downs and, while there may have been some disagreement just prior to [Mr Corbisiero]’s death, the panel did not consider the relationship had been terminated. While [Mr Corbisiero] may have had misgivings and vented his frustrations to his family and may have indicated to another party he wanted to leave the relationship, the evidence does not support he had actually taken steps to end his relationship with [Mr Nguyen] prior to his death. The panel considered the relationship was ongoing up to the date of death and therefore its duration was from 2006 until the date of [Mr Corbisiero]’s passing, spanning some 13 years.

22    Later, AFCA drew some additional conclusions about the nature of Mr Nguyen’s relationship with Mr Corbisiero:

The evidence provided to AFCA supported [Mr Nguyen] and [Mr Corbisiero] undertook actions which are consistent with maintaining a continued commitment to a shared life up until the date of [Mr Corbisiero]’s death. [Mr Corbisiero] made a [non-lapsing binding nomination] in December 2018 in favour of [Mr Nguyen], which is after [Mr Corbisiero]’s family alleged the relationship changed to one of friendship.

…

On a reading of the evidence as a whole, the panel was satisfied [Mr Corbisiero] and [Mr Nguyen] had a mutual commitment to a shared life.

23    Under the subheading, “On balance, the complainant and the deceased were in a spousal relationship at the date of his death”, AFCA recorded the following conclusions, namely:

The panel acknowledged there were aspects of the relationship between [Mr Corbisiero] and [Mr Nguyen] that did not align with [Mr Corbisiero]’s family’s values or expectations. However, the panel was not persuaded the family’s characterisation of the relationship between [Mr Corbisiero] and [Mr Nguyen] as one of friendship only was accurate based on the evidence which had been submitted to AFCA.

On the evidence when read as a whole, the panel accepted [Mr Corbisiero] and [Mr Nguyen] were in a spousal relationship such that [Mr Nguyen] meets the definition of spouse under the trust deed, as [Mr Corbisiero] and [Mr Nguyen] were living together on a genuine domestic basis in a relationship as a couple at the date of his death.

24    Those conclusions led, as they had to, to a finding that the Nomination was valid. AFCA concluded that the Trustee’s decision to pay the Death Benefit otherwise than entirely to Mr Nguyen was one that should be impugned as “not fair and reasonable”. It thus resolved to set the Trustee’s decision aside and, in its place, to require that the Death Benefit be paid entirely to Mr Nguyen.

The “Appeal” to the primary judge

25    Mrs Corbisieri sought to challenge that conclusion before the learned primary judge. Although the grounds upon which she did so were lengthier than this summary might suggest, they distilled to the simple proposition that AFCA had erred in law by construing the Text Message otherwise than as competent to reflect that Mr Corbisiero’s relationship with Mr Nguyen had terminated by the time of his death. That was the basis upon which his Honour approached the “appeal” and, with respect, he was right to do so.

26    After setting out the matter’s history, the competing submissions and the relevant statutory framework (in each case, consistently and more fulsomely than what appears above), the learned primary judge turned to consider the import of the Text Message. His Honour concluded (Primary Judgment, [30]-[33]):

30     In this case, in my view, AFCA did err as a matter of law in finding that the text was not effective to terminate the de facto relationship between Mr Corbisiero and Mr Nguyen within the meaning of rule 7.10D(d), because the only construction of the text reasonably open is that Mr Corbisiero intended by the writing and sending of it to terminate the relationship.

31    In terms, Mr Corbisiero said that the text was his “will and testament as from 1st of September”; that he “want[ed] to leave all [his] property and assets to [his] family to my brother and sister and [his] nieces”; and that Mr Nguyen put him in “the position or stage of [his] life where [he] had [had] enough”. He went on to ask that “this” (which it was accepted was a reference to his funeral) “only be [a] family thing” and that he “want[ed] no friends of [Mr Nguyen] to be there what so ever”.

32    It seems to me that, by those words, Mr Corbisiero made an unequivocal statement of his intention to terminate his de facto relationship with Mr Nguyen.

33    To say, as AFCA did, that the text instead conveyed that “relationships have their ups and downs” and that Mr Corbisiero “may have had misgivings and vented his frustrations” and “indicated to another party he wanted to leave the relationship” seems to me, with respect, to be an untenable reading of the text, and it was not reasonably open to AFCA to find as it did.

27    His Honour then proceeded to consider the various family law authorities upon which the parties had relied as to when a couple might be thought to have “separated”. His Honour considered—correctly, in my view—that the principles emerging from those authorities as to the meaning of “separate” were apt to inform whether or not Mr Nguyen’s relationship with Mr Corbisiero should be thought to have “terminated”. His Honour concluded (Primary Judgment, [39]-[40], [42]-[43]):

39    In my view, by analogous reasoning, it is not necessary for a party to a de facto relationship to communicate their intention to the other party in order to “terminate” it within the meaning of rule 7.10D(d).

40    It follows that the fact that Mr Corbisiero communicated his intention to his sister, not Mr Nguyen, is not relevant.

…

42    I do not agree that an expression of intention to terminate a relationship (or “to separate”, as in the family law cases) in all cases requires some overt, physical act in addition to a statement of intention. Each case must be determined on its individual facts.

43    But in any event, in the tragic circumstances of this case, by taking his own life, Mr Corbisiero did exhibit by his actions such an act, or to adopt what Dutney J said in S v B (No 2), he “acted on his decision”.

The present appeal

28    Mr Nguyen’s amended notice of appeal identifies seven grounds upon which the court is urged now to set aside the Primary Judgment and reinstate the AFCA Decision. They are more numerous than is necessary; but I shall replicate them for the sake of completeness:

1.     The Honourable Judge erred as a matter of law in finding that the only construction of the text sent by the late Pino Corbisiero (‘the Deceased’) as identified in paragraph 10 of His Honour’s reasons (‘the Text’) which was reasonably open was that the deceased intended by the writing and sending of it to terminate the relationship.

2.     The Honourable Judge erred as a matter of law in finding that it was not reasonably open to the first respondent (‘AFCA’) to find that the Text conveyed that “relationships have their ups and downs” and that Mr Corbisiero “may have had misgivings and vented his frustrations” and “indicated to another party he wanted to leave the relationship”.

3.     The Honourable Judge erred as a matter of law in finding that a unilateral expression of intention to terminate a spousal relationship, without some conduct on the part of the Deceased by which he conducted himself so as to terminate the relationship, was effective to terminate the spousal relationship.

4.     The Honourable Judge erred as a matter of law in finding that the death of the Deceased was itself an act which was intended to, and did, terminate the spousal relationship (for the purposes of determining whether the Binding Nomination was valid).

5.     The Honourable Judge erred as a matter of law in failing to take a relevant matter into account, being the evidence, including toxicology evidence of the Deceased having Cocaine and alcohol in his system at the time of sending the Text and at his death.

6.     The Honourable Judge erred as a matter of law in finding, in the context of the Deceased having consumed Cocaine and Alcohol prior to sending the Text and prior to his death, that the Text conveyed his intention to terminate the spousal relationship and that his suicide was an act by which he intended to terminate the spousal relationship.

7.     The Honourable Judge erred as a matter of law in setting aside the determination of Australian Financial Complaints Authority Limited (AFCA) in case number 871726.

29    In truth, the appeal turns upon consideration of a single question, namely whether the learned primary judge was correct to discern an error of law in AFCA’s conclusion that Mr Nguyen remained Mr Corbisiero’s spouse at the time of the latter’s death. If it was open to AFCA so to conclude, then it will necessarily follow that his Honour erred by holding otherwise and the appeal should succeed. If it was not, then his Honour’s conclusion was correct and the appeal should fail.

30    That analysis notwithstanding, I am inclined nonetheless to address a submission advanced by senior counsel for Mr Nguyen as to what the Text Message should be understood to suggest about Mr Corbisiero’s state of mind at the time of his death. It was suggested that the Text Message could not properly—or, at least, could not only—be understood as a statement of Mr Corbisiero’s intention to end his relationship with Mr Nguyen. That was said to be so because, as senior counsel put it:

People write suicide notes all the time, whether or not they mean to carry out the act of suicide. Sometimes they do so under the influence of alcohol.

…

…things get said by people all the time that they regret. That they don’t mean. That we see people talk about correspondence leading up to a suicide as a cry for help. We know that people take their own lives for a variety of reasons; financial pressure; pressure from various, perhaps not their central relationship, but the pressure that they feel from family and others on that particular relationship.

31    That submission was advanced to counter the conclusion of the learned primary judge that, “…by [his] words, Mr Corbisiero made an unequivocal statement of his intention to terminate his de facto relationship with Mr Nguyen” (Primary Judgment, [32]).

32    For the reasons to which I will shortly come, it is unnecessary to attempt the impossible task of interrogating Mr Corbisiero’s state of mind at the time of his death. But were it otherwise, I would be unable to accept that his Honour’s statement could be impugned in the way that Mr Nguyen seeks to impugn it. It was (and remains) accepted that the Text Message stood as a statement of Mr Corbisiero’s intention to take his own life—an intention that he effected only hours later. That there may have been all manner of considerations that bore upon his state of mind—potentially including, as Mr Nguyen was at pains to point out, the influence of alcohol and cocaine—may, of course, be accepted. But to speculate on that front would not be helpful. Mr Corbisiero’s intentions reflect most clearly and tragically in his conduct. He wrote a note indicating that he intended to end his life, which he later did. On any view, it is apparent that he intended to end his relationship with Mr Nguyen and, with respect, the learned primary judge did not err in so holding.

33    That conclusion stated, I would not cavil with what his Honour said about some aspects of the AFCA Decision; particularly AFCA’s observations about “relationships hav[ing] their ups and downs”: Primary Judgment, [33] (above, [26]).

34    The more significant question, however, is whether the Text Message was, in and of itself, competent to terminate Mr Corbisiero’s relationship with Mr Nguyen. On that front, two things bear noting.

35    The first involves a statement of the obvious. Mr Corbisiero’s relationship with Mr Nguyen very plainly terminated from the point of his death. Under the Rules, however, the question for consideration was whether the relationship terminated prior to (rather than because of) Mr Corbisiero’s death. Were it otherwise, the death of a member would always invalidate what would otherwise stand as a valid binding death benefit nomination.

36    The second harks back to the conclusion to which AFCA was drawn. It bears repeating that AFCA discerned some significance in the fact that, “…the evidence [did] not support [that Mr Corbisiero] had actually taken steps to end his relationship with [Mr Nguyen] prior to his death”. AFCA considered that the relationship could not terminate merely as a consequence of Mr Corbisiero’s state of mind or its communication to his sister; but, rather, that there needed to be some conduct on his part that was competent to terminate it. On the evidence—leaving aside, of course, Mr Corbisiero’s death—no such conduct was apparent.

37    That was—or, at least, was potentially—a matter of some significance. As the primary judge’s analysis of the family law authorities to which he was taken lays bare, a relationship between two people does not terminate merely because one of them forms an intention to terminate it. In S v B (No 2) [2005] 1 QdR 537, Dutney J (with whom McPherson and Williams JJA agreed), observed (at 549 [48], emphasis added):

…a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision.

38    Considering the word “terminates” according to its ordinary meaning, I am led to an equivalent view insofar as concerns r 7.10D(d) of the Rules. For those purposes, where one party to a de facto relationship forms an intention to end it, he or she must act upon that intention in order to effect its termination. That might, in some cases, involve the communication of the intention to the other party. Alternatively, it might involve some other conduct consistent with termination.

39    I respectfully agree with the learned primary judge’s conclusion that, “…it is not necessary for a party to a de facto relationship to communicate their intention to the other party in order to ‘terminate’ it”: Primary Judgment, [39]. Where, however, there is no such communication, there must, I think, be some other conduct that is apt to stand as a practical manifestation of the intention so formed. A person who tells a third party of his or her intention to end a de facto relationship should not be understood, merely by that communication, to have done so. In my view, termination requires some other conduct inconsistent with the continuation of the relationship—for example, desertion (as in In the Marriage of Tye (1976) 9 ALR 529 (Emery J)), unilateral relocation with children (as in Hibberson v George (1989) 12 Fam LR 725 (Hope, Mahoney and McHugh JJA)), refusal to cohabitate (as in S v S [2000] FMCAfam 50 (Brewster FM)), or refusal to communicate otherwise than in writing (as in S v B (No 2) [2005] 1 QdR 537 (McPherson and Williams JJA, Dutney J)).

40    In the present case, the only such conduct—which, as I have said, unambiguously effected the end of the relationship between Mr Corbisiero and Mr Nguyen—was Mr Corbisiero’s suicide. But, as I have noted, that conduct could not stand as having ended the relationship prior to Mr Corbisiero’s death. Mr Corbisiero’s communicating to his sister his intention to end his life (and, necessarily thereby, his relationship with Mr Nguyen) could not stand in that category either.

41    At the very least, it was open to AFCA to reason in that way. The character—and, indeed, the existence—of the relationship between Mr Corbisiero and Mr Nguyen was for AFCA to discern as a question of fact. Its findings about the existence and nature of the relationship were amenable to correction in this court only insofar as they were beyond what the evidence was capable of supporting: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390, 418 [91] (Hayne, Heydon, Crennan and Kiefel JJ). It was open to AFCA to conclude that, the Text Message notwithstanding, Mr Corbisiero had not “…actually taken steps to end his relationship with [Mr Nguyen] prior to his death”. With great respect to the learned primary judge, neither that finding, nor the consequent conclusion that the Trustee’s decision to withhold payment of the Death Benefit from Mr Nguyen was not fair and reasonable, can properly be impugned as products of legal error.

42    The learned primary judge’s conclusion that the Text Message could only be read as reflecting that Mr Corbisiero’s relationship with Mr Nguyen had “terminate[d]” was, again with great respect, incorrect. The appeal should be allowed. The Primary Judgment should be set aside and, in its place, it should be ordered that Mrs Corbisieri’s “appeal” from the AFCA Decision be dismissed with costs. Mrs Corbisieri should pay Mr Nguyen’s costs of the present appeal.

Associate:

Dated:    13 June 2024

REASONS FOR JUDGMENT

MCELWAINE J:    

43    I enjoy the considerable benefit of having read the draft reasons of Snaden J. I agree that the appeal must be allowed and with each order that his Honour proposes.

44    I write separately and succinctly to express my reasons. I adopt his Honour’s summary of the background, the facts and the reasons of the primary judge. In my view the resolution of this appeal begins and ends with the text of the Rules of the AMP Superannuation Savings Trust, as amended on 20 December 2017.

45    The deceased made a “Non-Lapsing Binding Nomination” on 6 December 2018 in favour of the appellant. Rules 7.10A-7.10D are concerned with Nominations of that type. In short, a direction to the trustee to pay some or all of the member’s death benefit to a person listed in the Nomination. Once given a Nomination operates as a lawfully binding direction upon the Trustee to pay the benefit to the nominee. In defined circumstances the Nomination “ceases to be valid and effective” upon the earlier of the events listed in r 7.10D. In this case two rules are relevant:

(c)     the date the Member marries or enters into a de-facto relationship (including with a person of the same sex)

(d)     the date the Member divorces or the Member’s de-facto relationship (including with a person of the same sex) terminates.

46    There is no definition in the Rules of de-facto or de-facto relationship or what is meant by terminate. There is, however, a definition of “Spouse” at r 1.1 which in relation to a person, includes at (b):

[A]nother person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

47    In my view, the textual link between entering into and terminating a de-facto relationship is clear. It is coincident with commencing to live with a person on a genuine domestic basis in a relationship as a couple and ceasing to do so.

48    The Australian Financial Complaints Authority (AFCA) in the Superannuation Determination made two findings of fact that are dispositive on that question:

While the panel accepted there were conflicting accounts of the living arrangements between the complainant and the deceased, it noted two parties can share a common residence even if one or other of them stays elsewhere from time to time for work or social purposes. On balance, it accepted this was the case for the deceased and the complainant and it was satisfied they shared a common residence and were therefore “living together” in the relevant sense.

…

On the evidence when read as a whole, the panel accepted the deceased and the complainant were in a spousal relationship such that the complainant meets the definition of spouse under the trust deed, as the deceased and the complainant were living together on a genuine domestic basis in a relationship as a couple at the date of his death.

49    Those findings were clearly open on the evidence. It follows that AFCA did not err in law in finding that r 7.10D(d) was not engaged before the deceased committed suicide. The text message was itself ineffective to terminate the relationship. With respect to the learned primary judge, the respondent’s appeal to his Honour raised a false issue by focusing on the effect of the text message which distracted attention from the provisions of the Rules.

Associate:

Dated:    13 June 2024

REASONS FOR JUDGMENT

MEAGHER J:

50    I have had the advantage of reading the final draft reasons for judgment of his Honour Justice Snaden. I gratefully adopt his Honour’s statement of the relevant facts and background and respectfully agree with the orders proposed by his Honour. I have also had the benefit of reading the final draft reasons for judgment of his Honour Justice McElwaine and respectfully agree with his Honour’s reasoning explanatory of the basis upon which the appeal is to be allowed.

Associate:

Dated:    13 June 2024