FEDERAL COURT OF AUSTRALIA

Commonwealth Superannuation Corporation v Truan [2020] FCA 364

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    In this proceeding the appellant (“CSC”) appeals from a decision of the Administrative Appeals Tribunal (“Tribunal”) which found that the respondent (“Mrs Truan”) was an eligible spouse to receive a spouse’s pension (“pension”) pursuant to s 39 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (“DFRDB Act”) following the death of her husband (“Mr Truan”). On 5 September 2017 a delegate of CSC found that Mrs Truan was not entitled to the pension as a marital or couple relationship did not exist between her and Mr Truan at the time of his death. The decision was affirmed on 21 February 2018. Mrs Truan then appealed the delegate’s decision to the Tribunal where it was overturned.

2    A spouse of a member of the DFRDB Act scheme is entitled to a pension on the death of the recipient member pursuant to s 39 of the DFRDB Act. Mr Truan was such a member at the time of his death. The entitlement to his pension is only for his “spouse” which is defined in s 3 of the DFRDB Act as having “a meaning affected by section 6B” which relevantly provides “a person is a spouse who survives a deceased person if the person had a marital or couple relationship with the deceased person at the time of the death of the deceased person.” “Marital or couple relationship” is then defined in s 6A of the DFRDB Act and it is the proper construction of that provision, and in particular, whether there was “absence because of special circumstances” within the meaning of s 6A(5)(b) upon which this appeal is focused.

3    Section 6A of the DFRDB Act relevantly provided:

6A    Marital or couple relationship

(1)    For the purposes of this Act, a person had a marital or couple relationship with another person at a particular time if the person ordinarily lived with that other person as that other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time.

(2)    For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at a particular time only if:

(a)    the person had been living with that other person as that other person’s husband, wife, spouse or partner for a continuous period of at least 3 years up to that time; or

(b)    the person had been living with that other person as that other person’s husband, wife, spouse or partner for a continuous period of less than 3 years up to that time and CSC, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time;

whether or not the person was legally married to that other person.

…

(5)    For the purposes of this section, a person is taken to be living with another person if CSC is satisfied that the person would have been living with that other person except for a period of:

(a)    temporary absence; or

(b)    absence because of special circumstances (for example, absence because of the person’s illness or infirmity or a posting of the person).

4    Mrs Truan was married to Mr Truan from 19 April 1973 until his death on 12 October 2015. Mr Truan was a Vietnam veteran who started to display war related symptoms of post-traumatic stress disorder (“PTSD”) from 1982 and was formally diagnosed in 1988. In June 1998 Mrs Truan left the family home with her daughters by reason of family violence inflicted upon her by Mr Truan and never again lived with her husband on a permanent basis.

Tribunal Decision

5    The Tribunal found that Mrs Truan was in a “marital…relationship” with Mr Truan at the time of his death, as defined by s 6A of the DFRDB Act and was accordingly a “spouse” for the purpose of the pension. In coming to that conclusion the Tribunal relied on evidence given by Mrs Truan, her daughters and medical professionals at Austin Health including:

    Evidence from a statement of Mrs Truan of June 2018 in which she stated:

I would have continued to live with him had it been safe to do so. [Mr Truan] and I were Catholics and we took marriage for life seriously. Neither of us ever sought any other partners after we were married in 1973.

I never cared for anyone else and always had [Mr Truan] as my husband even if I could not be with him at home after his violence increased in 1998. Nothing about his behaviour changed after we left the home. He still remained an increasingly isolated and uncommunicative man with serious psychological problems that he didn’t deal with by engaging in treatment. Nevertheless, I loved him all his life and would have been with him at home had it been safe to do so.

    Evidence from Mrs Truan that:

•    There were difficult times during 1978 and 1979 as [Mr Truan] was gambling heavily and she had been off work without pay after the birth of their second daughter. She eventually returned to work and relied on her wages to pay the bills and raise the children. About this time she spoke to a social worker who advised her to establish her own bank account, which she did, relying upon it to settle [Mr Truan’s] gambling debts.

•    Following [an incident of family violence in June 1998] she spoke to the local police requesting their assistance. She did not want to charge her husband but she wanted the police to explain to him that he could not hit her. However, at this time she knew she could no longer be safe with him as he was so angry, aggressive and suffering unpredictable mood swings; so she left the house with the children.

•    Although they were no longer living together, [Mrs Truan] still considered [Mr Truan] her husband and part of the family. They communicated regularly, calling or texting each other, inquiring about each other’s well-being and that of the girls. He attended family functions such as Christmas, the girl’s birthdays and other events.

•    In 2006 they went to the Family Court in respect of a property settlement for the family home at Bannockburn. No other assets were divided at this time. [Mr Truan] was in receipt of a pension from DFRDB at this time, but he told [Mrs Truan] not to concern herself with a settlement in respect of this as she would be the beneficiary of it upon his death.

•    When [Mr Truan] returned to Melbourne in 2015 he had been told he was dying from cancer. At this stage, as her daughter’s husband was a former nurse and of large build, it seemed more appropriate for [Mr Truan] to stay with them as he was able to look after [Mr Truan’s] medical needs and deal with his physical aggression. [Mr Truan] continued to be verbally and physically aggressive towards her during this time. She visited him every day, cooking meals and assisting in his care. She never considered herself as [Mr Truan’s] carer but as his wife, and these were the duties a wife would perform. She was not in receipt of a carers allowance for this period.

•    She had not lived with [Mr Truan] since 1998. They did have discussions about reconciliation but decided against it. She was not prepared to live with him until he dealt with his PTSD issues and he was not prepared to seek assistance. She reiterated that the threat of violence kept them apart.

•    During [Mr Truan’s] absences in Queensland and during his illness, she continued to maintain the family home at Bannockburn. She paid for [Mr Truan’s] funeral and was declared the beneficiary to [Mr Truan’s] estate, as he had died intestate.

    Evidence of Mr and Mrs Truan’s daughter Jasmine Truan-Jones that:

•    I had another conversation with him at my home when he was staying with us after his return from Brisbane. At this time his illness had been diagnosed and he knew it was terminal. It was in the context of a comment by me about how much mum was helping him at this difficult time. He said to me that she would get the [superannuation] entitlements both the benefit and the pension on his death. He commented on how well she had looked after him.

•    The extended family always included her father in family events, particularly Christmas, as everyone considered them still married. She recalled that her father had attended every Christmas event, even at her auntie’s; during the time he was living in Melbourne.

•    Neither her mother nor father had a relationship with any other person. It was only her father’s illness that kept them apart.

    Medical evidence from the Austin Health dated 13 May 2016 regarding Mr Truan’s diagnosis of PTSD and the treatment he sought and received until 1998.

    Evidence of Mr and Mrs Truan’s other daughter Juanita Truan that:

•    To the end of his life based on all of my observations and dealing with my parents I am of the firm view that they always considered themselves husband and wife. In his final days even though he refused to make a will he often said ‘don’t worry mum will get everything. She’ll be looked after.’

6    Ultimately the Tribunal concluded that Mr and Mrs Truan’s separation was an “absence because of special circumstances”, and that they were therefore still in a spousal relationship at the time of Mr Truan’s death for the purposes of s 39 of the DFRDB Act and Mrs Truan was therefore entitled to receive the pension. I will explore the Tribunal’s reasons for decision further in my deliberation below.

relevant legal principles

7    As an issue arose as to whether CSC’s grounds of appeal properly raised an error of law rather than error of fact, it is convenient to set out the following observations that I made about error of law in Beezley v Repatriation Commission [2015] FCA 78 at [35]-[37]:

[35]    The distinction between a question of law and a question of fact is notoriously elusive. This is significant, of course, because the scope of an appeal brought pursuant to s 44(1) of the AAT Act does not render findings of fact made by the Tribunal susceptible to challenge unless the manner of their making raises an error of law: Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 243 ALR 728 at [22] (Kenny J). The position was explained by Brennan J in Waterford v Commonwealth (1987) 163 CLR 54 at 77, as follows:

The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make.  There is no error of law simply in making a wrong finding of fact.

[36]    An instance of a vitiated factual finding is one that is supported by no evidence.  But, it bears repetition, ‘… there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law’: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34] (Sundberg, Emmett and Finkelstein JJ).

[37]    So, it is insufficient for the purposes of establishing an error of law to show that other findings were available.  However, ‘… the making of findings and the drawing of inferences in the absence of evidence is an error of law’:  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 (Mason CJ) (emphasis added). The corollary is that if there is some evidence to support a finding of fact, no error of law will have been committed.  Accordingly, as Goldberg J said in Parks Holdings Pty Ltd (t/as Gladstone Chemicals) v Chief Executive Officer of Customs (2004) 81 ALD 365 at [62]:

The tribunal is the ultimate determiner of the facts and it should only be in exceptional cases, where there is a clear case that there was no evidence to support a particular finding and conclusion, that the court should undertake that exercise. If there be evidence supporting the tribunal’s findings or conclusions, then the court should resist the temptation to consider the evidence going the opposite way for the purpose of establishing that there was no evidence upon which a finding could have been made.

8    Beyond the application of the “no evidence” rule there are other forms of legal error that may taint the fact finding task of a Tribunal. As McHugh, Gummow and Hayne JJ said in  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] “ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law”: see also One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527 at [204] (Bromberg, Katzmann and O’Callaghan JJ); Rus v Comcare [2017] FCA 239 at [26] (Bromberg J).

the appeal

9    CSC’s notice of appeal included the following two grounds:

1.    The Tribunal erred in failing to take into account Mr Truan’s lack of intention to reconcile in its application of section 6A(5)(b) of the DFRDB Act.

2.    The Tribunal erred in law in failing to take into account objective factors indicating a lack of intention to reconcile on the part of the Respondent in its application of section 6A(5)(b) of the DFRDB Act.

ground 1: mutual intention to reconcile

10    By ground one, CSC asserted that a mandatory consideration that the Tribunal had to take into account in its application of s 6A(5)(b) of the DFRDB Act was the mutual intention of Mr and Mrs Truan to reconcile. CSC submitted that the Tribunal made a finding that there was no evidence indicating Mr Truan’s intent, and further that evidence existed which demonstrated that Mr Truan did not have such an intent. On that basis CSC contended that the Tribunal failed to take Mr Truan’s intention into account and that this failure constituted an error of law.

11    Section 6A(5) is a deeming provision which addresses when a person is taken to be living with another person for the purposes of the requirement made pursuant to s 6A(1), that a person had a marital or couple relationship with another person.

12    Section 6A(5), read with s 6A(1), relevantly provides that a person is to be taken to be living with another person “at a particular time” (here at the time of Mr Truan’s death), if CSC is satisfied that the person would have been living with that other person except for a period of absence because of special circumstances, which expressly includes a person’s illness or infirmity.

13    To support its contention that a mutual intention is always a relevant consideration in the application of s 6A(5), CSC relied upon [47] of Salton v Commonwealth Superannuation Corporation (2013) 209 FCR 349 in which Robertson J found that an intention to reconcile is not a legally irrelevant consideration for the purposes of s 6A(1). CSC also relied upon an argument that a mutual intent as a mandatory consideration was apparent from the asserted temporal limit that CSC contended should be read into the “absence” dealt with by s 6A(5)(b).

14    As I will explain, it is not necessary for me to determine whether a mutual intent to reconcile is a mandatory consideration in the application of s 6A(5), as it may well be in the application of s 6A(1) and (2). For completeness, I should make two observations.

15    First, CSC’s contention appears to have conflated the requirements in s 6A(1) with the deeming function of s 6A(5)(b). What s 6A(5) does, as detailed above at [11], is deem a person to be “living with” their spouse for the purposes of s 6A(1) where special circumstances exist for the absence. It does not cover the whole of the inquiry for s 6A(1) purposes, including as to whether the persons deemed to be living together have done so on a permanent and bona fide domestic basis.

16    Second, CSC’s contention that a mandatory consideration was apparent from the asserted temporal limit that CSC contended should be read into s 6A(5)(b) is unpersuasive. There is no textual support for a temporal limit. Nor does the Explanatory Memorandum to the DFRDB Act, upon which CSC relied, support the contention. In any event, even if the temporal restriction asserted by CSC exists, it does not reveal the mandatory consideration which CSC contended should be implied.

17    It is unnecessary for me to decide whether a mutual intent to reconcile is a mandatory consideration because I accept that, in the circumstances of this case, whether or not a lack of mutual intention to reconcile was the cause of the absence was relevant to a consideration of whether Mr Truan’s illness was the cause of the absence.

18    A relevant question that was posed for the Tribunal in this case was whether Mr and Mrs Truan would have been living with each other at the time of Mr Truan’s death if it were not for Mr Truan’s absence because of “special circumstances”. That question was posed in circumstances where Mrs Truan contended that she and Mr Truan were not living together due to his illness and its manifestations ie. the “special circumstances”. Contrastingly, CSC contended that they were not living together at the time of his death because Mr Truan had no intention to reconcile and live together as husband and wife in a bona fide domestic relationship. In that context, it seems to me that at [43] the Tribunal asked the right question in construing and applying s 6A(5), that “[t]he issue in dispute between the parties is whether the separation of Mrs Truan from her husband at the time of his death was because of special circumstances.” In other words, the Tribunal correctly concluded that it was necessary to consider and determine what caused the absence. Specifically, it was necessary for the Tribunal to determine whether Mr Truan’s illness and its manifestation of violence upon Mrs Truan was the cause of the absence. In addressing the question of whether Mr Truan’s illness was the cause for Mr and Mrs Truan not living together at the time of Mr Truan’s death, it was relevant for the Tribunal to consider CSC’s alternative submission, that the cause of the separation was Mr Truan’s lack of intention to reconcile with Mrs Truan.

19    The question that I then need to determine is whether a mutual intention to reconcile was not considered by the Tribunal in the Tribunal determining whether the absence was “because of” Mr Truan’s illness. I would accept that in the context of the competing contentions made to the Tribunal, it would have been an error of law for the Tribunal not to have considered whether a lack of a mutual intention to reconcile was the cause of the absence. To have done that would have involved the Tribunal ignoring relevant material in a way that affected the Tribunal’s exercise of power.

20    It is necessary in answering that question to refer back to the Tribunal’s judgment. Early in its reasons, the Tribunal referred to and summarised the evidence before it. Although most of that evidence was not expressly referred to in the deliberative section of the Tribunal’s reasons headed “Findings”, it may be assumed that the findings were based upon that evidence. That evidence included evidence that was informative of Mr Truan’s intent (see [26] below).

21    The deliberative section of the Tribunal’s reasons is not free of ambiguity, but it should be read fairly, without a keen eye for error and in the context of the competing contentions made by the parties and, in particular, those contentions which sought to address the cause of the absence or separation of Mrs Truan from Mr Truan at the time of Mr Truan’s death.

22    Towards the commencement of its deliberative section (at [43]), the Tribunal identified the issue in dispute between the parties as being “whether the separation of Mrs Truan from her husband at the time of this death was because of special circumstances”. In the course of its deliberation (at [48]) the Tribunal stated that it “finds that Mrs Truan’s absence from her husband was due to special circumstances as a result of Mr Truan’s illness”. At the end of the deliberative section of its reasons, the Tribunal concluded (at [51]) as follows:

The Tribunal finds Mrs Truan is an eligible spouse surviving a deceased person for the purposes of s 6B(2) of the DFRDB Act, as she was separated from the husband due to special circumstances. The special circumstances being her husband’s illness of PTSD which persisted for 18 years preventing her from reconciling with her husband until his death.

23    Both the finding at [48] and that made at [51] set out the Tribunal’s finding as to the cause of the “special circumstances”. Implicit in those findings is the Tribunal’s rejection of any other cause and, in particular, that contended for by CSC, that the “absence” was caused by a lack of mutual intent to reconcile. It follows that the Tribunal did take into consideration, but rejected, that a lack of mutual intent to reconcile was a cause of the absence.

24    CSC urged me to read [51] as not containing the implicit finding I consider was made because of the Tribunal’s statement in the second sentence of [49] which, it was contended, should be understood as the Tribunal finding that there was no evidence at all relating to Mr Truan’s desire to reconcile. That paragraph relevantly states (emphasis in original):

The Tribunal accepts that Mrs Truan had always hoped her husband would receive the treatment he needed to deal with his illness, allowing them to reconcile and resume living together as a marital couple. There is no evidence indicating Mr Truan’s desire to reconcile and the Tribunal accepts the delegate’s finding that, there was no evidence supporting [an intention] to resume cohabitation once the temporary absence or absence due to special circumstances ceased.

25    Given that it is apparent from the Tribunal’s reasons that it properly understood the contest between the parties as to what should be ascribed as the cause of the absence, and that it expressly identified at [43] the issue in dispute, it is difficult to come to any other view than, that by accepting Mrs Truan’s assertion as to the cause of the absence, the Tribunal impliedly rejected the cause contended for by CSC.

26    Whilst that conclusion is not dependent upon a rejection of CSC’s construction of the second sentence of [49], I do, in any event, reject that construction. There clearly was evidence before the Tribunal which was indicative of whether or not Mr Truan had a desire to reconcile. That evidence is included in the summary earlier referred to at [5]. Some of the evidence was informative of a lack of intent, as CSC posited, including Mr Truan’s failure to continue with treatment for his PTSD, the length of the separation, the separate finances and property and the fact that Mr Truan went to Brisbane alone and then lived with his daughter and not Mrs Truan on return. However, some of the evidence was also supportive of Mr Truan holding the intention, including Mrs Truan’s statements that as Catholics she and her husband “took marriage for life seriously”, that neither sought other partners, that Mr Truan told both his daughters that he intended for Mrs Truan to be provided for after his death, that Mr and Mrs Truan “always considered themselves husband and wife” and that “it was only [Mr Truan’s] illness that kept them apart”. In that context, what the Tribunal said in the second sentence of [49] is better understood as a finding that there was no evidence of an expression from Mr Truan about his intent to reconcile made either directly or indirectly through a hearsay account.

27    Moreover, even if I were to accept CSC’s construction of the second sentence, that no evidence means no evidence at all, it is not clear to me why [49] supports the proposition that the Tribunal didn’t consider Mr Truan’s intention. This is so because the second sentence is dealing with intention and there would have been no need to deal with that unless the Tribunal had in fact recognised intent as a possible cause of the separation and therefore a relevant consideration.

28    What CSC is really contending, which is revealed by its written submissions, is not so much a failure to take into account a relevant consideration, but a failure to give appropriate weight to a relevant consideration. This contention travels beyond the bounds of legal error and invites the Court to analyse the merits of the Tribunal’s decision. There would only relevantly be legal error if the Tribunal had failed to consider a mutual intention to reconcile. As I have explained, that contention has not been established. As I have explained, that contention has not been established and, accordingly, ground 1 fails.

Ground 2: Mrs truan’s intention to reconcile

29    By its second ground of appeal, CSC challenges the Tribunal’s finding that Mrs Truan held an intention to reconcile with Mr Truan – that finding being made in the first sentence of [49] set out above. As CSC’s Counsel explained, that finding is challenged because it is contended that in making that finding the Tribunal failed to take into account objective evidence as to Mrs Truan’s intent and relied solely on her subjective evidence. What CSC essentially contended was that if evidence of objective circumstances had been taken into account, the Tribunal would not have accepted Mrs Truan’s evidence about her intention to reconcile. By its initial written submission, CSC appears to be inviting the Court to decide a question of fact, particularly so as it seeks to bolster this submission by comparing the circumstances of Mr and Mrs Truan’s separation to that in another Tribunal decision relating to a spouse’s pension Re Gray and Defence Force Retirement and Death Benefits Authority [2004] AATA 450.

30    In its written reply and oral submissions, CSC’s Counsel moved away from that characterisation of the ground of appeal and contended that the ground of appeal was really that the Tribunal misunderstood its fact finding task by proceeding on the basis that, in making a finding about Mrs Truan’s intent, it was bound to confine itself to considering her direct evidence and not permitted to take into account evidence of objective circumstances informative of that intent. The recasting of ground 2 was not the subject of opposition and I will address it.

31    The basis for CSC’s contention that the Tribunal misunderstood the fact finding task is that the Tribunal’s reasons do not refer to the objective material available that might have informed the Tribunal about the reliability of Mrs Truan’s evidence of her intent. In particular, CSC relies upon nothing being said about this material following the Tribunal’s finding in the first sentence of [49] that Mrs Truan held the relevant intent.

32    I would not conclude from the lack of reference to the evidence of objective circumstances that may have informed the Tribunal about the reliability of Mrs Truan’s evidence of her intent, that the Tribunal misunderstood its fact finding task in the manner contended for by CSC.

33    The relevant context is that first, there was an acceptance before the Tribunal that Mrs Truan was an honest witness and second, as I understand it from the transcript of the Tribunal hearing, at no point was any direct challenge made by CSC to the reliability of Mrs Truan’s evidence as to her intent to reconcile. In the context where neither the honesty nor the reliability of Mrs Truan’s evidence was put in contest, there was no apparent need for the Tribunal to expressly address in its reasons any evidence of objective circumstances, in so far as that evidence existed, that may have been informative of Mrs Truan’s true intent. Additionally, in so far as the Tribunal was obliged to deal with evidence in its reasons, it only had an obligation to deal with evidence that the Tribunal considered to be material to its findings: see Anees v Minister for Immigration and Border Protection [2020] FCAFC 28 (Bromberg, Kerr and Anastassiou JJ) at [52]-[53] and the cases there considered. Furthermore, it would be surprising for the Tribunal to have laboured under the fundamental misunderstanding contended for by CSC. An error of that kind ought not be readily presumed. In the context here in question, the finding that CSC contends for must be rejected.

34    For those reasons, ground 2 also fails.

disposition

35    I have rejected both of the grounds of appeal raised by CSC. Accordingly, I will make an order dismissing the appeal.

36    No submissions were made regarding costs. I presume that the fact that the matter was not directly addressed is demonstrative of an acceptance of the general rule that the winning party should be ordered to pay the losing party’s costs. I will make an order to that effect. If am wrong in the presumption I have made and CSC wants to press for an alternative order, I will revoke the costs order I will now make and seek submissions from the parties as to what order as to costs should be made.

Associate:

Dated:    18 March 2020