Federal Court of Australia

Wan v BT Funds Management Limited [2022] FCA 302

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Applicant pay the Third Respondents’ costs of and incidental to the appeal.

3.    The costs of the First and Second Respondents are reserved for later determination.

4.    In the event that the Applicant and the First and Second Respondents are unable to reach agreement concerning the reserved costs in order 3 within 7 days, the First Respondent is to inform the Court that agreement has not been reached and thereupon any question concerning the entitlement to costs of the First and Second Respondents, and the quantum of those costs, be referred to a Registrar of the Court for determination.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

Introduction

1    By further amended notice of appeal dated 17 February 2021, the Applicant, Ms Jing Wan, appeals against the decision of the Second Respondent, the Australian Financial Complaints Authority (AFCA), pursuant to s 1057(1) of the Corporations Act 2001 (Cth).

2    The appeal concerns a determination made by AFCA on 13 August 2020 by which AFCA affirmed a decision of the First Respondent, BT Funds Management Limited (the Trustee). More specifically, AFCA affirmed a decision made by the Trustee on 26 April 2019 to distribute the death benefit payable to one of its members, Mr Maxwell Rodney Walker (the deceased), to his estate rather than to the Applicant.

3    The contending positions on appeal were as follows. The Applicant submitted that AFCA erred in law by failing to conclude that the Applicant was a de-facto spouse of the deceased or in an interdependency relationship with the deceased at the time of his death. Having erred in that way, she contended that AFCA’s determination should be set aside. The Applicant also sought a declaration that she was a “dependant” of the deceased and an order that the entirety of the deceased’s death benefit be paid to her or, alternatively, that the matter be remitted to AFCA with a direction that the Applicant was a “dependant” of the deceased.

4    The Third Respondent, Mr Matthias Guy Derody, actively opposed the appeal in his capacity as the legal personal representative (LPR) and executor of the deceased’s estate. The Third Respondent contended that AFCA’s determination as to the fairness and reasonableness of the Trustee’s decision was not occasioned by any legal error, having regard to the broad discretion conferred on the Trustee. For that reason, the Third Respondent submitted the appeal should be dismissed.

5    Neither the First Respondent nor the Second Respondent participated in the appeal. Rather, each filed submitting notices save as to costs.

6    Embedded in the parties’ respective contentions are questions of fact and law that are central to the resolution of this appeal. For the reasons that follow, I have concluded that the appeal should be dismissed. I do not accept the Applicant’s contention that AFCA erred in concluding that the Trustee’s decision was fair and reasonable. Before considering those issues in detail, it is necessary to delve further into the background to the appeal.

Background

The deceased

7    The deceased’s health had been declining from around 2015, with the level of care and assistance he required increasing from early 2017. The deceased was eventually taken to hospital in June 2017 and died shortly thereafter, aged 62, on 11 July 2017.

8    At the time of his death, the deceased had never been married and did not have any children. He had, however, previously been in two long term de-facto relationships. One of those relationships was with Mrs Beatrice Derody (from approximately 1981 to 1991). The Third Respondent was born in 1979 and his biological mother is Mrs Derody. He is not the biological child of the deceased but viewed the deceased as his “father”. Moreover, prior to the deceased’s death, the Third Respondent was the deceased’s medical and financial power of attorney. The other relationship was with a beneficiary under his will, Ms Alison Betts (from approximately 1991 to 2012).

9    The Applicant says that she has known the deceased since late 2007. In or around 2012, after the Applicant ended a relationship with her ex-partner, she visited the deceased often and called each day if she could not visit. In mid-2014, the Applicant became increasingly concerned about the deceased’s health after he had a fall. At or around that time, the Applicant says that she started living with the deceased at his house in North Fitzroy. Further, she says that by the time of his death, she was a “dependant” within the meaning of the relevant superannuation law.

The deceased’s superannuation arrangements and residuary estate

10    On or around February 2015, the deceased transferred his superannuation benefits into an Asgard account managed by the Trustee. Each of the deceased’s annual member statements, which were sent to him by the Trustee at the conclusion of relevant financial years, recorded a nomination by the deceased of his estate as the sole beneficiary of his death benefit. For example, the Trustee’s annual statement to the deceased dated 30 June 2017 recorded: “You’ve nominated the following beneficiaries to receive this benefit in the event of your death: Estate 100%” [Emphasis added].

11    On 17 May 2017, the deceased made his final will. That will provided for his residuary estate to be distributed in equal shares to each of:

(1)    the Applicant;

(2)    the deceased’s former partner, Ms Betts; and

(3)    the son of the deceased’s other former partner, the Third Respondent.

12    As at 30 June 2017, the deceased had a balance in his superannuation account payable in the event of his death of $881,111. Though the deceased had made a nomination for his estate to be the sole beneficiary of his death benefit, it is common ground that he had not made a binding death benefit nomination. This became apparent during the course of the hearing as a result of the following events.

13    On 24 March 2021, shortly before the first day of hearing, the Third Respondent filed and served a Notice to Produce on the Trustee for the production of all documentation, correspondence or records relating to whether the deceased had made a binding death benefit nomination. That issue was highly relevant to the resolution of the appeal. If there were such a nomination, the entirety of the deceased’s death benefit would have been distributed to the deceased’s nominated beneficiary.

14    On 26 March 2021, the Applicant filed an interlocutory application for the purpose of setting aside the Notice to Produce, supported by an affidavit of Yue Huang, a solicitor engaged by the Applicant. In support of her interlocutory application, the Applicant also filed written submissions on 29 March 2021, contending that the Notice to Produce should be set aside for the following reasons.

15    First, the Applicant said the subject matter of the Court’s jurisdiction on appeal from AFCA is confined to questions of law. It therefore followed, according to the Applicant, that the ambit of the appeal was restricted to the errors identified by the Applicant in her Amended Notice of Appeal. Given that no concerns were raised regarding the status of the nomination made by the deceased, the Applicant contended that the documents sought by the Third Respondent in the Notice to Produce were not sufficiently relevant to the appeal to justify their production: Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [62] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).

16    Second, the Applicant submitted that there was no explanation for the delay in filing the Notice to Produce until shortly before the hearing. Further, she said that the delay imposed a considerable obligation, and thus disruption, on parties and practitioners already immersed in the preparation for and conduct of the appeal. Accordingly, the Applicant submitted that it was unreasonable for the Trustee to be expected to comply with the Notice to Produce in those circumstances: Tony Azzi Automobiles Pty Ltd v Volvo [2006] NSWSC 283 at [8] (Brereton J); Construction Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [7] (Collier J).

17    Third, the Applicant said that absent any information to suggest that the Trustee had misconstrued the nomination, the Notice to Produce amounted to nothing more than a “fishing” exercise.

18    On the first day of the hearing, I allowed the Notice to Produce for the reason that if a binding nomination had in fact been made, but not considered by the Trustee or AFCA, the prejudice to the Third Respondent’s interests would be potentially incurable. I temporarily adjourned the hearing and asked the parties to inspect the documents during the course of the adjournment. When the hearing resumed, the parties confirmed that there was no binding nomination in the documents produced.

19    Absent a binding death benefit nomination, it is therefore necessary to have regard to the Trust Deed for the Asgard Independence Plan. In this instance, cl 6.3(e)(v) of Schedule 2 of the Trust Deed stipulated the manner in which benefits were to be paid on a member’s death. Specifically, that clause provided that the trustee must pay the death benefit to one or more of the deceased member’s dependants, and/or his legal personal representative or such other person permitted by superannuation law, in its absolute discretion. The same clause also expressly stated that the Trustee may take into account any non-binding nomination made by the deceased, though of course is not bound by such a nomination. Both of these aspects of the Trust Deed are consonant with the requirements in the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act): see, especially, reg 6.22(2) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations).

The Trustee’s decisions

20    Having regard to the above background matters, I turn to consider the four decisions made by the Trustee in the present case concerning the distribution of the deceased’s superannuation death benefit.

21    On 22 June 2018, the Trustee resolved to pay all of the deceased’s superannuation death benefit to the Applicant on the basis that she was his de-facto spouse at the date of his death (the Trustee’s First Decision).

22    On 25 July 2018, the Third Respondent objected to the Trustee’s First Decision. Having considered the objection, the Trustee instead resolved to pay all of the death benefit to the deceased’s estate on 21 August 2018 (the Trustee’s Second Decision).

23    On 11 September 2018, the Applicant objected to the Trustee’s Second Decision. Having considered the objection, the Trustee resolved to uphold its Second Decision on 27 November 2018 (the Trustee’s Third Decision).

24    On 14 January 2019, the Applicant lodged a further objection. However, on 26 April 2019, the Trustee determined it was appropriate to distribute 100% of the superannuation death benefit to the deceased’s estate because:

(1)    it did not accept the Applicant was a dependant of the deceased as she was not a de facto spouse or in an interdependency relationship with the deceased within the meaning of ss 10 and 10A of the SIS Act and reg 1.04AAAA of the SIS Regulations;

(2)    on 30 June 2016, the deceased had re-confirmed his discretionary non-binding nomination for 100% of the death benefit to be paid to his estate; and

(3)    the deceased’s final will expressed a testamentary intention that his estate be divided equally between the Applicant, Ms Betts and the Third Respondent (the Trustee’s Fourth Decision).

25    In summary, the Trustee’s First Decision resolved to pay the deceased’s death benefit to the Applicant as the de-facto spouse of the deceased member, while the following three decisions resolved to distribute the deceased’s superannuation death benefit to his estate. As I have said, the practical effect of the Trustee’s Second, Third and Fourth Decisions is that the Applicant will receive approximately 33% of the death benefit derivatively, under and pursuant to the deceased’s will. By comparison, the practical effect of the Trustee’s First Decision would have been to distribute 100% of the death benefit to the Applicant. In any event, it is the Trustee’s Fourth Decision that was the subject of review by AFCA, and it is AFCA’s decision to uphold that decision which is the subject of this appeal.

26    I shall say more below about the scope of the Trustee’s discretion, including in relation to the critical question of whether it could abide by, reject or vary the member’s non-binding nomination, and what legal principles and statutory provisions delineate that discussion. However, at this stage, I simply note that in my view it was both permissible and necessary for the Trustee to take into account that the deceased had made a non-binding nomination that involved distributing his superannuation death benefit to his estate. As I have said, if the deceased had made a binding nomination, the Trustee would not have had a relevant discretion in relation to the distribution of the deceased’s death benefit.

27    I also conclude that the Trustee was permitted to take into account as relevant the fact that the Applicant was already a beneficiary under the will as to one-third of the deceased’s estate. In this regard, it is important to bear in mind that the decision made by the Trustee, and upheld by AFCA, has the effect that one-third of the deceased’s death benefit will ultimately be paid to the Applicant under and in accordance with the terms of his final will.

28    In any event, putting to one side the Trustee’s discretion, AFCA’s role under the relevant legislative scheme is to consider whether the Trustee’s decision was fair and reasonable in all the circumstances having regard to the interests of not only the Applicant, but also any other person joined as a party to the complaint: ss 1055(3) and 1056A of Corporations Act. For the reasons I shall explain, AFCA was therefore entitled to conclude that it was fair and reasonable for the Trustee in exercising its discretion to consider not only the interests of the Applicant but also other parties potentially entitled to a distribution under the will if the deceased’s non-binding direction was followed.

29    Before turning to AFCA’s determination, I set out the legislative provisions in the Corporations Act, SIS Act and SIS Regulations relevant to this appeal as well as their interaction with the Trust Deed.

The legislative scheme

Corporations Act

30    It is of assistance, and instructive, to commence with what the Full Court of this Court said in QSuper Board v Australian Financial Complaints Authority Ltd [2020] FCAFC 55; 276 FCR 97 at [13]-[16] (Moshinsky, Bromwich and Derrington JJ):

By the Treasury Laws Amendment (Putting Consumers First – Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth), amendments were made to the CA [Corporations Act], the Supervision Act and to the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act) for the stated purpose of rationalising the external dispute resolution processes for superannuation funds. In broad terms, the object of the amendments was to replace the SCT and other external dispute resolution schemes with the AFCA scheme. The implementation of the new system was mostly effected by the introduction of Part 7.10A into the CA which came into force on 6 March 2018. By it, the Minister administering the CA was authorised to establish an external dispute resolution scheme for superannuation complaints (CA s 1050(1)). The Minister exercised that power and the AFCA scheme was established. At the same time the Supervision Act was amended to require each trustee of certain regulated superannuation funds to be members of the AFCA scheme (s 101 of the Supervision Act). However, the Supervision Act requirements which applied to trustees of regulated superannuation funds, including the requirement to be a member of AFCA, did not apply in certain cases and, relevantly, in relation to trustees of superannuation funds which held an AFSL: s 101(1A) of the Supervision Act.

By the same suite of amendments which took effect on 6 March 2018, CA ss 912A(1)(g) and 912A(2) were also amended to the effect that in order for a person who provides financial services to retail clients to comply with the requirement to hold an AFSL, they must have membership of the AFCA scheme…

AFCA’s constitution provided that an entity may apply to become a member of the AFCA scheme by delivering to it a completed signed application form (cl 3.2(b) and (c)). The applying entity became a member once it was accepted by AFCA’s directors and its name was registered in the register of members (cl 1.1).

By cl 3.2(g) of the AFCA constitution and its rules, a member agreed to be bound by all the rules applicable to a member in respect of a complaint from time to time. Additionally, by cl 12.1(d) of AFCA’s constitution, the provisions of AFCA’s constitution and the rules ‘form a binding contract between’ the member and AFCA.

31    The effect of these amendments is that where an entity is a regulated superannuation fund, and the holder of an Australian Financial Services Licence (AFSL), AFCA determines complaints in respect of certain decisions made by the entity pursuant to the Corporations Act and AFCA’s Complaint Resolution Scheme Rules: QSuper at [17].

32    The nature of the powers accorded to AFCA are provided for by Division 3 of Part 7.10A of the Corporations Act. In particular, s 1055 of the Corporations Act provides as follows:

Making a determination

(1)    In making a determination of a superannuation complaint, AFCA has, subject to this section, all the powers, obligations and discretions that are conferred on the trustee, insurer, RSA provider or other person who:

(a)    made a decision to which the complaint relates; or

(b)    engaged in conduct (including any act, omission or representation) to which the complaint relates.

Affirming decisions or conduct

(2)    AFCA must affirm a decision or conduct (except a decision relating to the payment of a death benefit) if AFCA is satisfied that:

(a)    the decision, in its operation in relation to the complainant; or

(b)    the conduct;

was fair and reasonable in all the circumstances.

(3)    AFCA must affirm a decision relating to the payment of a death benefit if AFCA is satisfied that the decision, in its operation in relation to:

(a)    the complainant; and

(b)    any other person joined under subsection 1056A(3) as a party to the complaint;

was fair and reasonable in all the circumstances.

Varying etc. decisions or conduct

(4)    If AFCA is satisfied that:

(a)    a decision (except a decision relating to the payment of a death benefit), in its operation in relation to the complainant; or

(b)    conduct;

is unfair or unreasonable, or both, AFCA may take any one or more of the actions mentioned in subsection (6), but only for the purpose of placing the complainant, as nearly as practicable, in such a position that the unfairness, unreasonableness, or both, no longer exists.

(5)    If AFCA is satisfied that a decision relating to the payment of a death benefit, in its operation in relation to:

(a)  the complainant; and

(b)  any other person joined under subsection 1056A(3) as a party to the complaint;

is unfair or unreasonable, or both, AFCA may take any one or more of the actions mentioned in subsection (6), but only for the purpose of placing the complainant (and any other person so joined as a party), as nearly as practicable, in such a position that the unfairness, unreasonableness, or both, no longer exists.

(6)    AFCA may, under subsection (4) or (5), do any of the following:

(a)    vary the decision;

(b)    set aside the decision and:

(i)    substitute a decision for the decision so set aside; or

(ii)    remit the decision to the person who made it for reconsideration in accordance with any directions or recommendations of AFCA;

(c)    if the complainant was unfairly or unreasonably admitted into a life policy fund:

(i)    require a party to the complaint to repay all money, or particular money, received under the life policy to which the complaint relates; or

(ii)    set aside the whole or part of the terms or conditions of the life policy in their application to the complainant; or

(iii)    vary the governing rules of the life policy fund in their application to the complainant; or

(iv)    cancel the complainant’s membership of the life policy fund or of any sub-plan of the fund;

(d)    if the complainant was unfairly or unreasonably sold an annuity policy, contract of insurance or RSA:

(i)    require a party to the complaint to repay all money, or particular money, received under the annuity policy, contract or RSA; or

(ii)    set aside the whole or part of the terms or conditions of the annuity policy, contract or RSA in their application to the complainant; or

(iii)    vary the terms or conditions of the annuity policy, contract or RSA in their application to the complainant.

Limitations on determinations

(7)    AFCA must not make a determination of a superannuation complaint that would be contrary to:

(a)    law; or

(b)    subject to paragraph (6)(c), the governing rules of a regulated superannuation fund or an approved deposit fund to which the complaint relates; or

(c)    subject to paragraph (6)(d), the terms and conditions of an annuity policy, contract of insurance or RSA to which the complaint relates.

33    In QSuper, the Full Court conveniently summarised the nature of the powers conferred by s 1055 of the Corporations Act at [64]-[65]:

The powers conferred by CA s 1055 permit AFCA to set aside or vary a decision made by a trustee in relation to a fund member even where the decision was authorised by the trust deed and any regulating statute. The determining factor is not the lawfulness of the decision, but its fairness or reasonableness “in its operation in relation to the complainant”. Such a power is more aptly applied in relation to discretionary powers which, by their nature, confer wide decisional freedom on the repository such that a broad range of decisions might legitimately be made from a single set of facts. In any event, under the scheme where a complainant is aggrieved by a trustee’s decision, AFCA can consider the relevant circumstances and exercise the power or discretion of the trustee afresh so as to correct any perceived unfairness or unreasonableness arising from the original decision’s operation.

Despite the width of AFCA’s remedial powers, subsection (7) requires that it exercise the powers of the trustee or other authorised person within legal confines. It is not entitled to make a decision which is contrary to the terms of the trust or beyond the limits of any relevant statutory regulation. For instance, AFCA could not, standing in the shoes of a trustee, exercise a power in a manner which breached the trustee duty to observe the terms of the trust.

[Emphasis added]

34    AFCA is required to give written reasons in relation to its determination of a superannuation complaint: see s 1055A of the Corporations Act. If a party to a superannuation complaint is dissatisfied with a decision made by AFCA, s 1057(1) of the Corporation Act allows for an appeal to the Federal Court, on a question of law, from AFCA’s determination of the complaint. That appeal is to be instituted within 28 days and in accordance with the rules in the Federal Court of Australia Act 1976 (Cth): s 1057(2) of the Corporations Act.

35    The Federal Court has power to hear and determine the appeal and may make such order as it thinks appropriate: s 1057(3) of the Corporations Act. Without limiting subsection (3), the orders that may be made by the Federal Court on appeal include:

(1)    an order affirming or setting aside the determination of AFCA: s 1057(4)(a) of the Corporations Act; and

(2)    an order remitting the matter to be determined again by AFCA in accordance with directions from the Court: s 1057(4)(b) of the Corporations Act.

36    For completeness, I note that s 1057(5) of the Corporations Act provides that the Federal Court must not make an order awarding costs against a complainant if the complainant does not defend an appeal instituted by another party to the complaint. That is not the case here.

37    The parties did not refer to any authorities that have specifically considered the powers of the Court on hearing and determining an appeal from AFCA pursuant to s 1057 of the Corporations Act. However, it is instructive that these powers are very similar, or substantially the same as those applicable to the hearing and determination of an appeal from the Administrative Appeals Tribunal (AAT): see ss 44(3) and (4) of the Administrative Appeals Tribunal Act 1975 (Cth). It is also relevant that Division 33.2 of the Federal Court Rules 2011 (Cth), which deals with appeals from the AAT, applies to an appeal under s 1057 of the Corporations Act.

38    The numerous cases that have considered the powers of the Court on hearing an appeal from the AAT are therefore apposite in this context. For instance, in Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575, Sheppard J said at 585-586:

Dealing with the powers of this court on this appeal, it is not correct to see our powers as unlimited. The powers as stated are subject to restrictions, which restrictions are readily apparent if compared with the powers on review of the Tribunal, admittedly acting administratively, and the powers of this court in other jurisdictions, both original and appellate.

…

It is, in my opinion, not correct to say that this court is by [s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)] given wide powers to make such order as it thinks fit. Implicit in its powers are a number of restrictions. The appeal is expressly limited to error of law, which alleged error is the sole matter before this court and is the only subject matter of any order made consequent on the appeal. The order which this court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this court's view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this court under this section. A power to make "such order as it thinks appropriate by reason of its decision" is much more restrictive than a power "to make such order as it sees fit" or a power "to make a decision in substitution for the decision" the subject of the appeal. Section 44(5) confirms, though it states that it does not purport to limit, this as an appropriate reading of the power in s 44(4) when it limits its statement of the express power of the court when setting aside a decision to the making of an order remitting the case to be heard again. Having set aside a decision, it has no express power to substitute what it sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings.

The powers of this court on appeal under s 44 of the AA T Act are limited to consideration of alleged errors of law by the Tribunal and go no further. There is certainly no power to supervise the Tribunal in any other way and, in particular, to deal with the merits of the review. The error of law alleged has to be isolated out, a decision made on this question of law, and such order made and directions given as are appropriate only to the decision of this question of law, and not to the decision under review by the Tribunal.

[Emphasis added]

39    It follows that the only occasion the Court may substitute its decision is when the facts as found by the Tribunal admit, upon the application of the law as laid down by the Court, of only one result. That is, the Court may only substitute a decision of its own if it is of the view that there was only one decision which the Tribunal, properly instructed, could have arrived at: Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; 199 CLR 343 at [59] (Gaudron J). This constraint as expressed by Gaudron J in Thiyagarajah is materially the same as that described by Shepherd J in Gungor that the Court “has no express power to substitute what it sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular proceedings.”

40    In this instance, the Applicant accepted that if the appeal was allowed by the Court, it may be for AFCA, not the Court, to consider the relevant circumstances and exercise the power or discretion of the Trustee afresh so as to correct any perceived unfairness or unreasonableness arising from the original decision. As to this issue, the Third Respondent submitted that should the Court find that AFCA erred in any of the ways contended for by the Applicant, the most appropriate approach would be for the Court to remit the matter to AFCA to re-consider the Trustee’s determination, particularly given that the Applicant seeks an order that she be paid the entirety of the deceased’s death benefit.

41    I agree that the appropriate course, if the appeal were allowed, would be to remit for re-determination by AFCA as to whether the Trustee’s Fourth Decision satisfied the criteria in s 1055(3) of the Corporations Act. Neither the Trustee’s First Decision, nor the Trustee’s Second or Third Decisions, or relevantly for present purposes the Trustee’s Fourth Decision, are so self-evidently wrong as to permit only one outcome. Put another way, the Trustee’s First Decision is not so self-evidently reasonable compared to the Trustee’s Fourth Decision, such that this Court should, if the appeal were allowed, substitute the Trustee’s First Decision for the Trustee’s Fourth Decision.

SIS Act and SIS Regulations

42    In addition to the aforementioned parts of the Corporations Act, there are provisions in the SIS Act and SIS Regulations specifically relevant to this appeal. In particular, s 34 of the SIS Act requires trustees of superannuation entities to ensure compliance with “prescribed standards”. Section 55A(1) of the SIS Act provides that the governing rules of a regulated superannuation fund must not permit a member’s benefit to be cashed after their death other than in accordance with standards prescribed for the purposes of s 31 of the SIS Act. The standard contained in the SIS Regulations which is principally relevant to the payment of a member’s death benefit is reg 6.22, which provides:

The conditions of this subregulation are satisfied if the benefits are cashed in favour of either or both of the following:

(a)    the member's legal personal representative;

(b)    one or more of the member's dependants.

43    Section 10 of the SIS Act is also highly relevant. That section defines a “dependant” as including “the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship”. It follows that to satisfy the definition of “dependant” under the SIS Act, the Applicant needs to have been a spouse or in an interdependency relationship with the deceased.

44    Section 10 of the SIS Act defines spouse as follows:

Spouse of a person includes:

(a)    another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

(b)    another person who, although not legally married to the person, lives with the person on a genuine domestic basis as a couple.

[Emphasis added]

45    Section 10A of the SIS Act defines interdependency relationship as follows:

10A Interdependency relationship

(1)    Subject to subsection (3), for the purposes of this Act, 2 persons (whether or not related by family) have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)    they live together; and

(c)    one or each of them provides the other with financial support; and

(d)    once or each of them provides the other with domestic support and personal care.

(2)    Subject to subsection (3), for the purposes of this ACT, if:

(a)    2 persons (whether or not related by family) satisfy the requirement of paragraph (1)(a); and

(b)    they do not satisfy the other requirements of an interdependency relationship under subsection (1); and

(c)    the reason they do not satisfy the other requirements is that either or both of them suffer from a physical, intellectual or psychiatric disability;

they have an interdependency relationship –

(3)    The regulations may specify:

(a)    Matters that are, or are not, to be taken into account in determining under subsection (1) or (2) whether 2 persons have an interdependency relationship; and

(b)    Circumstances in which 2 persons have, or do not have, an interdependency relationship.

46    The SIS Regulations provide further guidance on whether two people have an interdependency relationship in reg 1.04AAAA:

(1)    For paragraph 10A(3)(a) of the Act, the following matters are to be taken into account in determining whether 2 persons have an interdependency relationship, or had an interdependency relationship immediately before the death of 1 of the persons:

(a)    all of the circumstances of the relationship between the persons, including (where relevant):

(i)    the duration of the relationship; and

(ii)    whether or not a sexual relationship exists; and

(iii)    the ownership, use and acquisition of property; and

(iv)    the degree of mutual commitment to a shared life; and

(v)    the care and support of children; and

(vi)    the reputation and public aspects of the relationship; and

(vii)    the degree of emotional support; and

(viii)    the extent to which the relationship is one of mere convenience; and

(ix)    any evidence suggesting that the parties intend the relationship to be permanent;

(b)    the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was, in an interdependency relationship with the other person.

(2)    For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

(a)    they satisfy the requirements of paragraphs 10A(1)(a) to (c) of the Act; and

(b)    one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, rather than by a mere friend or flatmate.

Examples of care normally provided in a close personal relationship rather than by a friend or flatmate:

(i)    Significant care provided for the other person when he or she is unwell.

(ii)    Significant care provided for the other person when he or she is suffering emotionally.

(3)    For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)    they do not satisfy the other requirements set out in subsection 10A(1) of the Act; and

(c)    the reason they do not satisfy the other requirements is that they are temporarily living apart.

Example for paragraph (3)(c): One of the persons is temporarily working overseas or is in gaol.

(4)    For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)    they do not satisfy the other requirements set out in subsection 10A(1) of the Act; and

(c)    the reason they do not satisfy the other requirements is that either or both of them suffer from a disability.

(5)    For paragraph 10A(3)(b) of the Act, 2 persons do not have an interdependency relationship if 1 of them provides domestic support and personal care to the other:

(a)    under an employment contract or a contract for services; or

(b)    on behalf of another person or organisation such as a government agency, a body corporate or a benevolent or charitable organisation.

The Trust Deed

47    As I have explained above, the Trustee was required to pay the deceased’s superannuation death benefit according to any relevant superannuation law and by reference to the terms of the Trust Deed. Accordingly, there are specific clauses in the Trust Deed which are also relevant to whether there was any legal error on the part of AFCA in resolving to uphold the Trustee’s Fourth Decision.

48    Most relevantly, r 6.3 of Schedule 2 of the Trust Deed stipulates the requirements pertaining to the payment of benefits under the Trust Deed when the benefit becomes payable. In particular, r 6.3(e)(v) of Schedule 2 of the Trust Deed applies where there is no binding death nomination at the time of the participating member’s death, as is the case here. In those circumstances, the Trust Deed says that the death benefit is to be paid by the Trustee to dependants of the deceased, the deceased’s legal personal representative or such other person as permitted by “Superannuation Law”, or to any one or more of them to the exclusion of the other or others, as the Trustee determines in its absolute discretion.

49    The Trust Deed did not include a definition of “dependant”. However, cl 1.2 of the Trust Deed includes the composite rule that where a word or phrase:

(1)    begins in uppercase;

(2)    is not defined in cl 1.1 of the Trust Deed; and

(3)    has a particular meaning under “Superannuation Law”,

the word or phrase shall have the same meaning in the Trust Deed as under the “Superannuation Law”.

50    In addition, r 6.5 of Schedule 2 states that "it is an overriding condition of Rules 6.2, 6.3 and 6.4 that any benefit determined in accordance with rule 6.2 ... shall be dealt with in the manner required by Superannuation Law". This Rule is consistent with other parts of the Trust Deed, such as:

(1)    clause 1.7.2, which provides that any provision of Superannuation Law that is required from time to time shall be taken to be included in the Trust Deed;

(2)    clause 1.7.4, which provides that Superannuation Law covenants are taken to be included in the Trust Deed; and

(3)    clause 1.7.5, which provides, in effect, that in the event of any inconsistency between Superannuation Law incorporated into the Trust Deed and any other terms of the Trust Deed, Superannuation Law shall prevail.

51    For completeness, I note that “Superannuation Law” is defined broadly in cl 1.1 of the Trust Deed to include any of the following:

(1)    the SIS Act;

(2)    the Superannuation Entities (Taxation) Act 1993;

(3)    the Tax Act;

(4)    the Superannuation Guarantee Charge Acts;

(5)    the Corporations Act;

(6)    the Family Law Act;

(7)    any other present or future law which the Trustee determines to be a Superannuation Law for the purposes of this Deed; and/or

(8)    regulations, statutory instruments, prudential standards, binding determinations, declarations, notifications, orders, class orders, determinations, rulings and any other instruments made or issued under any Act specified in paragraphs (a) to (g) (inclusive) with which the Trustee must or may comply with.

52    The inter-relationship between the Trust Deed and Superannuation Law is significant to the resolution of the first ground of appeal, which raises for consideration the proper construction of the phrase “dependant” in the Trust Deed, which was not capitalised in r 6.3(e)(v) of the Trust Deed. However, before considering the various grounds of appeal, I return to AFCA’s determination.

AFCA’s determination

53    The Applicant made a complaint to AFCA on 28 May 2019. On 13 August 2020, AFCA affirmed the Trustee’s Fourth Decision, concluding that the Trustee’s decision was fair and reasonable because the Applicant was not a dependant of the deceased at the time of the deceased’s death.

54    As the Trust Deed did not provide for a definition of “dependant”, AFCA referred to various aspects of Superannuation Law, including the SIS Act, and determined that in order to meet the definition of ‘dependant’, the Applicant had to be either: the deceased’s ‘spouse’; in an ‘interdependency relationship’ with the deceased; or ‘financially dependent’ on the deceased at the date of his death.

55    Having regard to these matters, AFCA determined that:

(1)    the weight of the “objective evidence” did not support a finding that the Applicant and the deceased were living together on a genuine domestic basis as a couple at the date of the deceased’s death; and

(2)    there was insufficient information to demonstrate that the Applicant was in an interdependency relationship with the deceased or that she was financially dependent upon him.

56    In its determination, AFCA noted that the Applicant and deceased had been in “some type of relationship”. In particular, AFCA concluded that the material provided to it showed:

•    The complainant and the deceased member had known one another since late 2007;

•    The complainant and the deceased member kept in touch but were not in a permanent relationship from that time;

•    In mid-2014 the complainant became increasingly concerned about the deceased member after he had a fall;

•    The deceased member was experiencing declining health, particularly from 2015, and the level of care and assistance he required increased from early 2017 until the deceased member was taken to hospital in June 2017;

•    The deceased member’s doctor had noted reference to the complainant providing him with assistance from 2015;

•    The complainant’s presence at his home had been noticed by a number of the deceased’s close friends from early 2017; and

•    The deceased member had indicated that he was appreciative of the assistance provided and had included the complainant in his will to thank her for the care provided.

57    AFCA noted the conflicting evidence about the nature and status of the relationship between the deceased and the Applicant.

58    One the one hand, AFCA noted that the Applicant had given evidence that she was in a de-facto relationship with the deceased at the date of his death and that she had lived, and commenced a relationship, with the deceased from around mid-2014. The Applicant had also claimed that she was financially dependent on the deceased and that despite maintaining her own residence, they were living together at his house in North Fitzroy.

59    On the other hand, AFCA recorded that the Third Respondent did not accept that the Applicant and deceased had been in any kind of serious or intimate relationship. In fact, the Third Respondent contended that the Applicant was only a carer to the deceased as his health declined, and that fair and adequate provision had already been made for her under the deceased’s final will.

60    AFCA then went on to consider whether the Applicant was a spouse of the deceased or, alternatively, whether the Applicant was in an interdependency relationship with the deceased.

Was the Applicant a de-facto spouse of the deceased?

61    In determining whether the Applicant was a de-facto spouse of the deceased, AFCA began by observing as follows:

Under superannuation law, a ‘spouse’ is defined to include someone who, although not legally married to a person, lives with the person on a genuine domestic basis in a relationship as a couple.

If the [Applicant] was the deceased member’s ‘spouse’, she was also a dependant under superannuation law and the trust deed.

The following common law factors are indicative of when two people are living together on a genuine domestic basis in a relationship as a couple:

•    the duration of the relationship

•    nature and extent of a common residence

•    whether or not a sexual relationship exists

•    degree of financial dependence or interdependence

•    ownership, use and acquisition of property

•    the degree of mutual commitment to a shared life

•    the care and support of children

•    the reputation and public aspects of the relationship.

62    AFCA proceeded to consider the evidence by reference to the above criteria. In relation to the duration of their relationship, AFCA noted that the deceased and the Applicant had known each other from late 2007, and that from 2015 the Applicant had an increasing presence in the deceased’s life and involvement in his care. AFCA acknowledged that by early 2017, the Applicant was spending an increasing amount of time at the deceased’s home, including staying overnight. Notwithstanding, AFCA ultimately concluded that the nature of the relationship was “uncertain”.

63    AFCA took into account that the Applicant had maintained her own residence from 2014, being a house provided to her through social housing arrangements, throughout her relationship with the deceased and up until he died. Indeed, AFCA recorded that the Applicant gave evidence that she had discussions with the deceased towards the end of 2016 as to whether she should continue to maintain her own residence. According to the Applicant, the deceased said he would “think about it”. However, due to his declining health it was not brought up again. AFCA concluded that there was no evidence before it to suggest that the deceased’s residence was a common residence, despite accepting that the Applicant had stayed at the deceased’s home on occasion, had left clothes at the deceased’s residence and stayed overnight with increasing frequency as his health declined.

64    AFCA was unable to determine whether or not the Applicant and the deceased had a sexual relationship. AFCA noted that the Applicant said she shared a bed with the deceased but that the deceased was advised to refrain from sexual activity after 2016 due to his deteriorating health. AFCA therefore concluded that even if there was some form of sexual relationship at some time, it was just one of a number of elements relevant to whether the Applicant was the deceased’s de-facto spouse.

65    Further, AFCA was not satisfied, on the evidence provided, that the deceased was financially dependent on the Applicant or vice versa. The Applicant received an income, which was a Centrelink benefit, and otherwise appeared to purchase basic living items for her and the deceased from his funds. AFCA concluded that there was otherwise no evidence of joint expenses or transfers to or from the Applicant or the deceased’s bank accounts. Further, AFCA noted that a one-off transaction of $6,000 for dental expenses referred to by the Applicant as supporting evidence was explicable as a one-off gift and did not meet the threshold of financial dependence or interdependence.

66    AFCA also noted that there was conflicting information as to whether the Applicant and the deceased had a mutual commitment to a shared life. While the Applicant expressed that she was the deceased’s de-facto spouse, AFCA was not convinced that the deceased viewed her in the same way. In this respect, AFCA had regard to the fact that the deceased referred to the Applicant as a “friend” in his final will. AFCA considered it significant that the deceased was reluctant to label the relationship and seemed to go to some length to clarify to some of his closest friends that the Applicant was merely a “friend” and also to deny that she was his “girlfriend” or “partner”.

67    As to the reputation and public aspects of their relationship, AFCA noted that there was conflicting evidence concerning whether the deceased and Applicant were a publicly recognised couple. The Applicant provided evidence in support of her characterisation of being the de-facto spouse of the deceased, including a statutory declaration from a neighbour who had seen both the Applicant and the deceased together in the deceased’s home and at the supermarket. However, AFCA was not satisfied that the weight of the evidence demonstrated that the Applicant and the deceased were in a de-facto relationship. Further, AFCA acknowledged that the Applicant was providing assistance to the deceased in his final years, but was not satisfied that they were in a de-facto relationship given also that the deceased often referred to the Applicant as a “helper” and “friend” when speaking to others who were close to him.

68    AFCA noted, presumably for the sake of completeness, that the Applicant and deceased did not have children and did not own any joint property. AFCA also noted other potentially relevant factors, for example that there was evidence the Applicant may have driven the deceased’s car, and that the deceased ultimately left his car to the Applicant in his final will. None of these factors were given significant weight in AFCA’s reasons.

69    Having regard to these matters, AFCA concluded:

Considering the weight of the objective evidence as it relates to the complainant’s claim that she was the deceased member’s de-facto spouse, I am not satisfied that at the date of death they were living together in a genuine domestic relationship as a couple.

Was the Applicant in an interdependency relationship with the deceased at the date of his death?

70    AFCA then went on to consider whether the Applicant was in an interdependency relationship with the deceased at the date of his death, by reference to the definition of “interdependency relationship” in that SIS Act and SIS Regulations.

71    AFCA commenced by observing as follows:

Under superannuation law the definition of dependant includes ‘any other person with whom the member has an interdependency relationship’.

For two persons to have been in an interdependency relationship, certain criteria have to be met immediately before the date of death which are:

•    they have a close personal relationship; and

•    they live together; and

•    one or each provides financial support; and

•    one or each provides domestic support and personal care.

72    AFCA added that the factors relevant to determining whether there is an interdependency relationship are very similar to the factors relevant to assessing whether there is a de-facto relationship, with the addition of whether the relationship was intended to be permanent and whether the relationship was one of mere convenience.

73    Weighing these matters in the balance, AFCA reached the following conclusion:

While I accept there was some form of relationship between the deceased member and the complainant, I am not satisfied that the complainant was in an interdependency relationship such that it would satisfy the criteria necessary as outlined in the regulations. The requirements are similar to those of spouse and as I have outlined above, I am not satisfied that the complainant was the deceased member’s de-facto spouse.

Even if I was satisfied that a close personal relationship existed, I am not satisfied the complainant lived permanently at the deceased member’s home as she maintained her own residence. There has also not been any evidence of financial support provided by or to the deceased member. I have noted my concerns in relation to this requirement above. This means I am also not satisfied that she was a financial dependent.

On the information provided, I am also not satisfied that the complainant and deceased member were in an interdependency relationship, such that would make her a dependant.

Was the decision of the trustee fair and reasonable?

74    Having regard to the above, AFCA concluded that the decision to pay the deceased’s death benefit to his estate was fair and reasonable in all the circumstances. Relevantly, in reaching this view, AFCA noted that the Trustee adequately took into account: (1) whether the Applicant was a dependant of the deceased; (2) that the deceased had made a non-binding nomination for the entirety of his death benefit to be distributed to his estate; and (3) the deceased’s final will provided for an equal distribution of the deceased’s estate to the Applicant, the deceased’s former partner and the Third Respondent.

75    AFCA accepted that there “may have been a relationship” between the deceased and the Applicant at some point, and the Applicant provided significant care to the deceased as his health deteriorated. However, AFCA determined that, based on the competing evidence provided, the Applicant was not the deceased’s de-facto spouse; was not in an interdependency relationship with the deceased; and did not have a relationship of financial dependence.

Constraints on the Trustee’s Discretion and Scope of AFCA’s Remit

76    Before turning to consider the grounds of appeal and contending submissions, it is important to understand the scope of the Trustee’s discretion to determine how to distribute the deceased’s superannuation death benefit, including whether it should abide, reject or vary the member’s non-binding nomination and what legal principles and statutory provisions delineate that discussion. Inherent in this question is the allied question of the extent, if any, to which the Trustee was permitted, or required, to have regard to the fact that the Applicant is a residuary beneficiary of the deceased’s estate as to a one-third share. These are matters which I raised with counsel during the hearing and in relation to which I requested written submissions. I turn now to consider what falls from those submissions.

77    At a high level of generality, the discretion conferred on a trustee is one that involves matters of judgment and degree. However, as is so often observed, it is a discretion which must be exercised having regard to the subject matter, scope and purpose for which it was given: Wotton v Queensland [2012] HCA 2; 246 CLR 1 at [9]-[10] (French CJ, Gummow, Hayne, Crennan and Bell JJ).

78    There are numerous authorities which demonstrate the breadth of a trustee’s discretion and the limited extent to which that discretion is examinable by a Court. Seminal among those authorities is Karger v Paul [1984] VR 161, in which McGarvie J held at 164:

[I]t is open to the Court to examine the evidence to decide whether there has been a failure by the trustees to exercise the discretion in good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred. As part of the process of, and solely for the purpose of, ascertaining whether there has been any such failure, it is relevant to look at evidence of the inquiries which were made by the trustees, the information they had and the reasons for, and manner of, their exercising their discretion. However, it is not open to the court to look at those things for the independent purpose of impugning the exercise of discretion on the grounds that their inquiries, information or reasons or the manner of exercise of the discretion, fell short of what was appropriate and sufficient. Nor is it open to the Court to look at the factual situation established by the evidence, for the independent purpose of impugning the exercise of the discretion on the grounds that the trustees were wrong in their appreciation of the facts or made an unwise or unjustified exercise of discretion in the circumstances. The issues which are examinable by the Court are limited to whether there has been a failure to exercise the discretion in good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred. In short, the court examines whether the discretion was exercised, but does not examine how it was exercised…

[Emphasis added]

79    The principles in Karger v Paul were conveniently summarised by the Victorian Court of Appeal in Telstra Super Pty Ltd v Flegeltaub [2000] VSCA 180; 2 VR 276, in which Callaway JA said (at [27]):

The duties implicitly identified in Karger v. Paul are, therefore, first, to act in good faith; secondly, to give real and genuine consideration to the right question; and, thirdly, to act for a proper (as opposed to an extraneous) purpose.

80    It has also been said specifically in the context of trustees of a superannuation fund that where the trustee is under a duty to form an opinion, the court may only infer a breach of duty if the decision is one that no reasonable trustee could make on the material before it: see, eg, Telstra Super Pty Ltd v Flegeltaub [2000] VSCA 180; 2 VR 276 at [26] (Callaway JA), Ormiston JA agreeing at [7] and Batt JA agreeing at [34]; Maciejewski v Telstra Super Pty. Limited [1999] NCWSC 341 at [13].

81    Importantly, however, in Finch v Telstra Super Pty Ltd [2010] HCA 26; 242 CLR 254, the High Court (French CJ, Gummow, Heydon, Crennan and Bell JJ) cautioned against applying the principles in Karger v Paul to decisions of superannuation fund trustees that are not in fact “discretionary decisions”. In particular, their Honours explained (at [28]-[29]) that Karger v Paul involved the exercise a trustee’s discretion under a will where the a testatrix left all her property to her husband for life and conferred a power on the trustees “in their absolute and unfettered discretion” to pay or transfer the whole or part of the capital of her estate to her husband. The High Court contrasted that kind of power with the situation in Finch, being one in which the trustee was bound to consider whether to reach opinions in relation to matters which in turn determined the eligibility of potential beneficiaries to be paid from the trust. The High Court said that while that consideration no doubt involved factors “difficult to weigh, impressions to be formed, and judgments to be made”, the trustee was not exercising a discretion in the true sense. More specifically, their Honours said (at [30]) that forming the required opinion “was not a matter of discretionary power to think one thing or the other; it was an ingredient in the performance of a trust duty.”

82    Their Honours went on to explain (at [33]) that different criteria might be thought to apply to the operation of a superannuation fund from those which apply to discretionary decisions made by a trustee holding a power of appointment under a non-superannuation trust. Their Honours referred to the public significance of superannuation (at [34]) and added that because of the potentially lengthy time periods over which superannuation savings are accumulated, it was natural, and it is now in many instances mandatory, for a trust mechanism to be employed in this context (at [35]). At [36]-[37], their Honours added:

Thus the public significance of superannuation and the close attention paid to it through statutory regulation support the conclusion that the decisions of superannuation trustees are not likely to be largely immunised from judicial control without clear contrary language in the relevant trust document. Decisions like those which the Trustee made in this case are not discretionary decisions in the sense used in Karger v Paul.

Those reasons also suggest, though the contrary was apparently not put to it, that the Court of Appeal was wrong to approach the present controversy as if the principles stated in Karger v Paul, developed in and appropriate to other fields, were applicable in the present field without any qualification. But the question how far those principles should be qualified may be postponed for a time.

[Footnotes omitted; emphasis added].

83    Their Honours returned to that issue at [57] and said:

Earlier the question how far the principles in Karger v Paul should be qualified was postponed. It was a question of some controversy between the parties.

[Footnotes omitted]

84    Their Honours ultimately concluded at [65] that it was unnecessary to “evaluate the merits of the competing contentions about how far Karger v Paul principles were applicable and whether other principles should be adopted” in the context of superannuation fund trustees because the primary judge had properly concluded that the trustee ought to have made further inquiry into various matters. Their Honours said at [65]) that:

To offer answers to wider questions which might arise in disputes different from the present where it is not necessary to do so would have an unsettling effect on the law which may not be beneficial.

85    Notwithstanding the above, the “one respect” in which the High Court thought it prudent to express a view in relation to the relevance of Karger v Paul was to observe that superannuation fund trustees making a discretionary determination are subject to a higher duty to inform themselves than other trustees. More specifically, the High Court said (at [66]):

There is no doubt that under Karger v Paul principles, particularly as they have been applied to superannuation funds, the decision of a trustee may be reviewable for want of “properly informed consideration”. If the consideration is not properly informed, it is not genuine. The duty of trustees properly to inform themselves is more intense in superannuation trusts in the form of the Deed than in trusts of the Karger v Paul type. It is extremely important to the beneficiaries of superannuation trusts that where they are entitled to benefits, those benefits be paid.

[Emphasis added]

86    The High Court thus left open the question of the application of the principles in Karger v Paul to trustees of superannuation funds: see, eg, Mercer Superannuation (Australia) Limited v Billinghurst [2016] FCA 1274 at [78] (Moshinsky J); Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Beck & Anor [2016] NSWCA 218 at [137]-[140] (Bathurst CJ). I was not referred to any authority which resolves that controversy, though Nettle JA’s reasons in Alcoa of Australia Retirement Plan Pty Ltd v Frost [2012] VSCA 238; 36 VR 618 at [59] (Redlich JA and Davies AJA agreeing) neatly encapsulates the importance of a superannuation fund trustee giving properly informed consideration in this context:

As the decision in Finch has enabled us better to understand, trustees of superannuation funds are no longer to be conceived of in the same way as custodians of charitable or family settlements through the exercise of whose absolute discretion settlors have chosen to channel their beneficence. The economic, industrial and ultimately social imperatives which inform the advent of the superannuation industry, not to mention that beneficiaries of the kind with which we are concerned in one way or the other invariably purchase their entitlements, are productive of legitimate expectations which the law will enforce. Superannuation fund trustees are bound to give properly informed consideration to applications for entitlements and, if that necessitates further inquiries, then they must make them.

87    In my view, it is unnecessary to reach a view about whether and, if so, to what extent, the principles in Karger v Paul should be qualified in light of the High Court’s observations in Finch, save to say that it is clear that the duty of trustees to properly to inform themselves is higher in the context of superannuation trusts for the reasons cogently explained by their Honours. In any event, it is apt to recall that this is an appeal on a question of law from AFCA's determination of the Applicant’s complaint, rather than judicial review of a Trustee’s decision. Accordingly, the Court’s function is limited to determining whether AFCA erred in law, rather than to resolve in any definitive way the duties of a trustee of a superannuation fund. In that context, were it to be necessary, the Trustee may seek judicial advice about such matters, including their duties in light of the discretions and powers conferred by a trust deed and the relevant legislative scheme: see, eg, r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic); s 63 of the Trustee Act 1925 (NSW); Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; 237 CLR 66 at [36], [54]-[75] (Gummow ACJ, Kirby, Hayne and Heydon JJ) and [196] (Kiefel J).

88    Returning to the parties’ submissions, at the level of general principle, the Applicant submitted that when determining how to distribute a member's death benefit, a trustee must act in the best interests of the beneficiaries, act honestly and in good faith, give real and genuine consideration to the interests of the beneficiaries, avoid conflicts of interests and act impartially between different classes of beneficiaries: s 52(2) of the SIS Act; see also Wooster v Morris [2013] VSC 5994.

89    As to the significance of the Applicant being a beneficiary under the deceased’s will, the Applicant submitted that the provision made under a will does not override the discretionary power of a superannuation fund trustee to determine how to distribute a deceased member’s superannuation benefits in accordance with a trust deed. This is consistent with the approach taken by the former Superannuation Complaints Tribunal (SCT) , which repeatedly observed that it is not the purpose of superannuation death benefits to rectify any perceived deficiencies in a member’s will: see, eg, D13-14\183 [2014] SCTA 79 at [41].

90    The Applicant listed the following principles that she said should be considered when distributing a death benefit, which were frequently cited in the SCT (see, eg, D14-15\187 [2015] SCTA 42 at [52]).

(1)    Superannuation death benefits are usually paid to dependants as opposed to the deceased’s legal personal representative.

(2)    Superannuation is not an asset of the estate and a trustee is not bound to follow the directions of a will.

(3)    A trustee must determine the appropriate distribution of a death benefit unless there is in force a binding death benefit nomination.

(4)    A trustee will generally only pay a benefit to the legal personal representative of a deceased member if there are no dependants or if there was such a direction in a binding death benefit nomination.

(5)    The purpose of superannuation is to provide income in retirement to a member and his or her dependants.

(6)    When multiple dependants have been identified it is appropriate to also consider the financial circumstances of the dependants when apportioning the benefit.

(7)    The wishes of a deceased as expressed in his or her will, though not binding on the trustee, may be taken into account when determining the distribution of the death benefit.

91    The Applicant submitted that the Trustee erred by failing to give preference to the interests of the Applicant as a dependant, and by failing to acknowledge that preference in its reasons. It was a necessary premise of the Applicant’s contention that, at a minimum, the existence of a dependant would have amounted to a likely preference and a serious matter to be considered in the exercise of the Trustee’s discretion. Further, it followed, according to the Applicant, that a finding by AFCA that the Applicant was a dependant would likely have led to all or at least a significant proportion of the benefit being paid to the Applicant.

92    Having regard to these considerations, the Applicant submitted that the matter should be remitted to AFCA with a direction that the Applicant was a “dependant” as she was both the spouse of the deceased and in an interdependency relationship with the deceased. As I have said, I agree that the appropriate course, if the appeal were allowed, would be to remit the matter for re-determination by AFCA, and allow AFCA to receive or hear further evidence in relation to the nature of the Applicant’s relationship with the deceased, to determine whether the Trustee’s Fourth Decision satisfied the criteria in s 1055(3) of the Corporations Act.

93    In response, the Third Respondent submitted that even if the Applicant was a dependant of the deceased, or in an interdependency relationship with the deceased, that is only one matter for the Trustee to consider in making its determination. The Trust Deed does not provide that the Trustee must pay the death benefit to a dependant, nor does the legislation. The Trustee may, inter alia, take into consideration the duration and nature of the relationship between the deceased and the Applicant and, equally, the duration and nature of the relationships between the deceased and each of the beneficiaries of his will.

94    The Third Respondent contended that the Trustee has an absolute discretion under the Trust Deed to allocate funds between any dependants or the legal personal representative as it sees fit. That discretion is broad, though not unfettered. Relevantly, the Third Respondent referred to Attorney-General of the Commonwealth v Breckler [1999] HCA 28; 197 CLR 83 at [7], in which the High Court endorsed the following passage from Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd [1998] FCA 51; 79 FCR 469:

Where a trustee exercises a discretion, it may be impugned on a number of different bases such as that it was exercised in bad faith, arbitrarily, capriciously, wantonly, irresponsibly, mischievously or irrelevantly to any sensible expectation of the settlor, or without giving a real or genuine consideration to the exercise of the discretion. The exercise of a discretion by trustees cannot of course be impugned upon the basis that their decision was unfair or unreasonable or unwise. Where a discretion is expressed to be absolute it may be that bad faith needs to be shown. The soundness of the exercise of a discretion can be examined where reasons have been given, but the test is not fairness or reasonableness.

[Footnotes omitted; emphasis added]

95    It was thus the Third Respondent’s contention that AFCA’s scope to impugn the Trustee’s discretion is relatively circumscribed and limited. As such, it is necessary to say something more about the nature and scope of AFCA’s remit before considering the contending submissions. In Edwards v PostSuper Pty Ltd [2007] FCAFC 83, the Full Court of this Court (Tamberlin, Emmett and Middleton JJ) said at [15]:

The role of the [SCT, being the precursor to AFCA] … is not to decide for itself the correct or preferable decision: it must affirm a decision if it is satisfied that the operation of the decision the subject of review was fair and reasonable in the circumstances. The Tribunal may have to make its own findings of fact for the purposes of determining that. However, such findings of fact are necessary, and are only for that purpose. The tribunal does not simply stand in the shoes of the primary decision-maker. Its task is not to engage in ascertaining generally the rights of the parties. Further, it is not required to engage in a form of judicial review of the decision of the primary decision-maker. Rather, it is to form a view, from the perspective of the primary decision-maker, as to whether the decision was unfair or unreasonable.

96    The observations in Edwards v PostSuper must be read in the context of what the Full Court said in QSuper at [64]-[65], which I set out again for convenience:

The powers conferred by CA s 1055 permit AFCA to set aside or vary a decision made by a trustee in relation to a fund member even where the decision was authorised by the trust deed and any regulating statute. The determining factor is not the lawfulness of the decision, but its fairness or reasonableness “in its operation in relation to the complainant”. Such a power is more aptly applied in relation to discretionary powers which, by their nature, confer wide decisional freedom on the repository such that a broad range of decisions might legitimately be made from a single set of facts. In any event, under the scheme where a complainant is aggrieved by a trustee’s decision, AFCA can consider the relevant circumstances and exercise the power or discretion of the trustee afresh so as to correct any perceived unfairness or unreasonableness arising from the original decision’s operation.

Despite the width of AFCA’s remedial powers, subsection (7) requires that it exercise the powers of the trustee or other authorised person within legal confines. It is not entitled to make a decision which is contrary to the terms of the trust or beyond the limits of any relevant statutory regulation. For instance, AFCA could not, standing in the shoes of a trustee, exercise a power in a manner which breached the trustee duty to observe the terms of the trust.

97    In Rushton v Commonwealth Superannuation Corporation (No 3) [2021] FCA 358 at [50], Rares J said, to the same effect, in relation to AFCA’s powers:

The hearing by the Authority is de novo: Mercer Superannuation (Australia) Ltd v Billinghurst (2017) 255 FCR 144 at 155 [32] per Flick, Kerr and Pagone JJ. The determining factor for the exercise of the Authority’s powers under s 1055(3) is not the lawfulness of the trustee’s decision, but its fairness and reasonableness in its operation in relation to the complainant and any joined person: QSuper Board v Australian Financial Complaints Authority (2020) 276 FCR 97 at 113 [64] per Moshinsky, Bromwich and Derrington JJ.

98    I respectfully adopt the concise description of AFCA’s power in the above quoted passage from Rares J in Rushton. AFCA is given that singular remit; namely, to determine whether a trustee’s decision is fair and reasonable in its operation in relation to the complainant and any joined person. That power should not be confused, or conflated, with the Trustee’s discretionary powers conferred under the Trust Deed, understood within the confines of the established equitable principles in Karger v Paul, as qualified by the High Court in Finch.

99    For reasons I shall discuss further below, in my opinion, the Trust Deed does not constrain the exercise of the Trustee’s discretion such that the deceased’s superannuation death benefits should be prima facie paid to dependants as opposed to the deceased’s legal personal representative. Further, there is no allegation in this proceeding that the Trustee acted beyond power, or otherwise not for a bona fide purpose, nor that the Trustee exercised its discretion for a purpose inconsistent with the power conferred by the Trust Deed. In the absence of any such allegation in connection with the Trustee’s Fourth Decision, the question of whether the Trustee’s decision was fair and reasonable only arises in the present case because the Applicant made a complaint and thereby engaged AFCA’s power to determine whether the decision made by the Trustee was fair and reasonable in all the circumstances, having regard to the interests of the Applicant and the complaints made by her.

100    There is an asymmetry between the confined grounds upon which a trustee’s discretion may be impugned on judicial review, in accordance with established equitable principles, and the power to be exercised by AFCA once its jurisdiction is engaged. The Trustee is not required to give reasons for the exercise of its discretionary power. Thus, in the absence of any reasons, consideration of whether the trustee’s decision was fair and reasonable must necessarily depend upon a consideration of the effect of the decision having regard to the interests of the complainant (including any representations made by the complainant in relation to the complaint) and any other party joined to the complaint.

101    As the Court explained in QSuper at [64], AFCA carries out its function by considering the relevant circumstances and exercising the discretion of the trustee afresh so as to correct any perceived unfairness or unreasonableness arising from the original decision’s operation. Moreover, AFCA is entitled to make its own findings of fact as may be required for the purposes of determining that question. AFCA does not, however, appear to have a process for interrogating evidence before arriving at a decision, either through objections or cross-examination. Rather, it receives statements, statutory declarations and other such documents. In all of this, AFCA’s role is to assess retrospectively whether the decision of the Trustee was fair and reasonable. If it is so satisfied, it must affirm the decision: s 1055(3) of the Corporations Act.

102    A further asymmetry arises because AFCA’s power is engaged only after a complaint has been made about the trustee’s decision. The trustee may or may not have been aware before making his or her decision of the nature of the relationships between interested parties and other relevant matters subsequently relied upon by the complainant when invoking AFCA’s jurisdiction. Thus, AFCA’s power involves a retrospective review of the effect of the trustee’s decision having regard to facts relevant to the complaint, which may or may not have been known to the trustee at the time the decision was made.

103    If the facts known to a trustee at the time of the decision objectively support a conclusion on the part of AFCA that the decision was fair and reasonable, having regard also to the interests of the complainant and to such representations concerning the effect of the trustee’s decision upon the complainant’s interests as may be made, that may be a sufficient basis for AFCA to discharge its statutory function. In that event, as I have said, the trustee’s decision must be affirmed.

104    In other circumstances, as here, there may also be a dispute between the complainant and other interested persons affected by the trustee’s decision concerning facts relevant to AFCA’s ex post facto assessment of the fairness and reasonableness of the trustee’s decision. When this arises, AFCA may need to make its own findings concerning such disputed facts. This is the approach which AFCA took in the present case. For reasons I shall explain below, in my view AFCA properly and genuinely considered the factual issues relevant to the exercise of its statutory power and had a proper basis for the conclusions it reached concerning those factual matters, as well as for its ultimate conclusion that the Trustee’s Fourth Decision was fair and reasonable.

105    In the present case, the principal matter of objective relevance to AFCA’s power to assess the reasonableness of the Trustee’s decision is the fact that the deceased made provision for the Applicant through dual streams; namely, in his final will and, indirectly, by nominating his estate as the beneficiary of the superannuation death benefit. In my view, it was reasonable and necessary for AFCA to take into account the Applicant’s entitlements under the deceased’s will – and consequently through the non-binding nomination of his estate – when considering whether the Trustee’s Fourth Decision was fair and reasonable.

106    At the time of his death, the deceased owned assets which would form part of his estate, including real estate. The deceased’s entitlement to the death benefit did not form part of his estate at the time of his death but would do so only upon the Trustee affirming the deceased’s non-binding nomination of his estate as the beneficiary of the death benefit. I see no reason why AFCA should not have considered the provision made by the deceased for the Applicant holistically when considering whether the Trustee’s decision to affirm the death benefit nomination was fair and reasonable. In my view, it would be artificial and inconsistent with the statutory scheme for AFCA to ignore the fact that, in addition to the Applicant’s indirect benefit derived from the nomination of the estate as the beneficiary of the death benefit, the Applicant is also entitled to one-third of the assets forming part of the deceased’s estate. When the Applicant’s entitlement to one-third of the deceased’s residuary estate is taken into account, the answer to the question for AFCA of whether the Trustee’s decision is fair and reasonable is surely affected by the further provision made for the Applicant under the terms of the deceased’s final will.

107    In my view, the Applicant did not address the correct question when it submitted that the deceased’s testamentary wishes, as manifest by his will, do not override the Trustee’s discretion. The question is not, as posited by the Applicant, whether the Trustee is bound by the deceased’s testamentary wishes as expressed in the non-binding nomination of his estate as the beneficiary of the death benefit (or, equivalently, as expressed in his final will). Rather, the question to be considered by AFCA, ex post facto, is whether the Trustee’s Fourth Decision was fair and reasonable in all the circumstances in its operation in relation to the complainant and any other person joined as a party to the complaint.

108    The relevance of the additional provision made for the Applicant as a residual beneficiary under the will may be tested by considering the question to be answered by AFCA on the hypothetical assumption that the deceased had not made any provision for her in his final will. In that event, it would be relevant for AFCA to consider the absence of any other provision made for the Applicant when deciding whether the Trustee’s decision was fair and reasonable having regard to the complainant and any other person joined as a party. If the Applicant was not to benefit indirectly from the nomination of the estate as the beneficiary of the death benefit, that fact would be of significance to any complaint the Applicant may have made to AFCA founded upon the grounds presently relied upon by her; namely, that she was owed obligations of support by reason of the nature of her relationship with the deceased and/or her dependency on him. In other words, the relevance of any additional provision made for a complainant, or not made, as the case may be, cuts both ways, so to speak.

109    I do not accept the Applicant’s submissions concerning the principles said to be universally applicable to a trustee when exercising its powers to decide upon the distribution of a superannuation death benefit. The Applicant submitted that I should accept superannuation death benefits are usually paid to dependants as opposed to the deceased’s legal personal representative. The Applicant said this principle may be discerned from decisions made by AFCA’s predecessor, the SCT. Whether or not certain practices or principles have been developed by the SCT, as the Applicant submits, the exercise of a trustee’s discretion in this context is subject to only limited constraints or qualifications. Those constraints or qualifications undoubtedly require the Trustee to give real and genuine consideration to the exercise of its discretion, including by properly informing itself of relevant matters. However, those obligations do not necessarily impose an obligation upon a trustee to consider the effect of its decision upon potential complainants, or whether having regard to the interests of the complainant, the decision, in this case to affirm the deceased’s non-binding death benefit nomination, was fair and reasonable. As I have said, those are questions for AFCA to determine, which arise only when its jurisdiction is engaged by the making of a complaint.

110    Though it is unnecessary for me to decide, I respectfully disagree with the blanket adoption of the asserted guiding principles from the former SCT in relation to the exercise of a trustee’s discretion in this context. I do not accept that when AFCA comes to assess whether a trustee’s decision to affirm a non-binding nomination is fair and reasonable, it should give preference to the interests of a complainant who was a dependant of the deceased, or had been in an interdependency relationship with the deceased. In the present case, there is no support for such an approach to be found in the terms of the Trust Deed. In this respect, I note that cl 6.3(e)(v) of the Trust Deed expressly provides that when exercising its discretion in the context of a non-binding nomination, the Trustee is to pay the death benefit to one or more of the member’s dependants, legal personal representative or such other persons permitted by superannuation law, in whatever proportions it decides. The specification of these classes of potential beneficiaries does not create an ex ante preference for one class of beneficiaries over others.

111    If I were wrong to conclude that there was no presumptive preference for the payment of dependants, it would be of no consequence. This is because AFCA proceeded on the assumption that the purpose of a superannuation death benefit is to provide for a deceased member’s dependants who were receiving financial support and might reasonably have expected to continue to receive financial support from the deceased member, had they not died. In effect, therefore, AFCA followed the same approach as the former SCT, rendering my observations only indirectly relevant to the appeal. In any event, as I go on to explain, I do not accept that AFCA erred in finding that the Applicant was not a dependant, that being one of the central contentions raised on appeal.

112    Needless to say, each decision must be considered having regard to the particular facts and circumstances of the complaint in question. However, it is not sound as a matter of principle or analysis to distil from the outcome of particular complaints a principle to the effect that some form of preference should be given to a complainant who establishes that he or she was in dependency relationship, including where the complainant establishes that he or she was the spouse or de-facto spouse of the deceased. Such a principle would fight against the broad scope of a trustee’s discretion and the grounds upon which its exercise may be impugned, even appreciating that superannuation fund trustees making a discretionary determination are subject to a higher duty to inform themselves than other trustees.

113    Further, and more relevantly, the Applicant did not refer to any authority from a superior court that supports an approach to the exercise of that power on the basis that some preference is to be accorded to the interests of a complainant who establishes that he or she was a dependant of the deceased. That is, of course, not to say that the nature of the relationship between the deceased member and the complainant is by any means irrelevant or unimportant. Clearly, the nature of the relationship is of central relevance to AFCA’s assessment of whether the trustee’s decision was fair and reasonable. But that factor must be considered together with other relevant factors, including the provision, if any, made by the deceased for the complainant under the terms of his or her will in circumstances where, as in the present case, the deceased held assets at the time of his death that formed part of his estate and others, such as the superannuation death benefit, which did not.

114    In brief, AFCA’s task was thus to determine whether the Trustee’s decision was fair and reasonable in all the circumstances in its operation in relation to the complainant and other parties joined to the complaint: s 1055(3) of the Corporations Act. That review function is directed to whether the actual decision, rather than the process that led to it, was fair and reasonable: Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; 119 ALD 472 at [46]; Cummins v Petterd [2021] FCA 646 at [12] (Flick J). In other words, AFCA’s power is directed to the effect of the trustee’s decision on the interests of the complainant. For the reasons I have given above, it was entirely appropriate for AFCA to consider the effect of the Trustee’s Fourth Decision to affirm the deceased’s non-binding nomination, having regard to the combined effect of his testamentary wishes as manifest by his final will and by his nomination of the estate as the beneficiary of his death benefit.

115    AFCA did not fall into error by considering the effect of the Trustee’s Fourth Decision on the Applicant’s interests in the critically important context that she had already been provided for financially by the deceased via two streams of disposition I have described. That provision must be considered in aggregate insofar as the Applicant complains that her financial interests have been adversely affected by AFCA’s decision.

116    For the avoidance of doubt, I stress that the provision to the Applicant via the two streams of disposition was not relevant for the reason that the Trustee was bound by the testamentary wishes of the deceased expressed in his will. Nor was it relevant because either the Trustee or later, AFCA, were each required to give particular weight to that factor in discharging their respective tasks to the observance of the manifest testamentary wishes of the deceased expressed in his will, or analogously by his nomination of the estate as beneficiary of the death benefit. Rather, that issue was a relevant as an objective factor for AFCA to assess in determining whether the Trustee’s Fourth Decision was fair and reasonable in all the circumstances.

117    Indeed, the aggregate provision made for the Applicant was also objectively significant to the Trustee if it was to give real and genuine consideration in the exercise of its discretion to the interests of beneficiaries. In the present case, the objective relevance of the Applicant having been provided for via the two streams is that without taking into account the aggregate provision made for the Applicant, the Trustee would not have a proper basis for making a cogent assessment of whether to follow the deceased’s non-binding nomination insofar as it affects the interests of beneficiaries. The Trustee had a discretion to affirm the nomination, or reject it and substitute one or more of the classes of potential beneficiaries referred to in cl 6.3 of the Trust Deed, in such proportions as it determined. Having regard to the manifest purpose of that express discretionary power; namely, that the Trustee may decide to nominate various persons from within the defined classes under the Trust Deed, objectively it could not give proper and genuine consideration to the exercise of that power without first ascertaining the state of affairs so far as the financial interests of beneficiaries are concerned.

118    Accordingly, I conclude that without taking the aggregate provision made for the Applicant into account, the Trustee would not have a proper understanding of the financial, or economic, effect of the deceased’s nomination, in respect of which it had the discretionary power to affirm, reject or vary as it saw fit. Though the content of AFCA’s power and the nature of its role is different to the powers and role of the Trustee, the objective significance of the aggregate provision made for the Applicant is surely relevant to any analysis by AFCA of whether the Trustee’s Fourth Decision was fair and reasonable in all the circumstances.

119    I have discussed the significance of the dual streams of provision made for the Applicant at some length, perhaps even repetitiously, because for the Applicant to succeed I would need to be satisfied that AFCA had fallen into legal error in concluding in the above circumstances that the decision of the Trustee was fair and reasonable. I should not be taken as suggesting that the substantial aggregate provision made by the deceased for the Applicant was alone sufficient for AFCA to be satisfied the decision was fair and reasonable. However, in my view, the aggregate provision made by the deceased for the Applicant from the whole of his assets, within and outside his estate at the time of his death, objectively bespeaks an intention on his part to make substantial provision for the Applicant (albeit not exclusively so). That is a compelling factor which supports AFCA’s conclusion that the Trustee’s decision was fair and reasonable having regard to the Applicant. It is for the same reason also an objectively compelling factor which supports upholding AFCA’s decision.

120    I turn now to consider the specific grounds of appeal raised. I do so from the lens of considering whether AFCA erred in law in the process of reviewing the Trustee’s determination: s 1057 of the Corporations Act. Importantly, I approach that question on a fair reading of AFCA’s reasons, and not one astute to detecting error: Williams v IS Industry Fund Pty Ltd [2018] FCAFC 219; 266 FCR 370 at [43] (Allsop CJ, Reeves and Derrington JJ). For the reasons I explain, I am not satisfied that AFCA erred in finding that the Trustee’s decision was fair and reasonable.

Appeal to this court

121    By further amended notice of appeal dated 17 February 2021, the Applicant raised the following seven grounds of appeal:

1.    Whether the Authority misconstrued its task and erred in law by only asking itself whether the Applicant fell within the definition of “dependant” contained in s 10 of the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act) when, on a proper construction of the Trust Deed of the Deceased’s superannuation fund, the definition of “dependant” was broader.

2.    Whether the Authority erred in law by failing to give proper, genuine and realistic consideration as to whether the Applicant was the “spouse” of the Deceased within the meaning of s 10 of the SIS Act.

3.    Whether the Authority erred in law by misconstruing or misapplying the phrase “lives with” in the definition of spouse in s 10 of the SIS Act by imposing a requirement that the couple must share a common residence on a full-time basis.

4.    Whether the Authority erred in law by failing to give proper, genuine and realistic consideration as to whether the Applicant was in an “interdependency relationship” with the Deceased within the meaning of s 10A of the SIS Act and Regulation 1.04AAAA of the Superannuation Industry (Supervision) Regulations 1994 (the SIS Regulations).

5.    Whether the Authority erred in law by misconstruing or misapplying the phrases “lives together” in the definition of “interdependency relationship” at s 10A of the SIS Act by imposing requirements respectively that the Applicant live “permanently” at the Deceased’s home.

6.    Whether the Authority erred in law by holding that there was no evidence that the Deceased had provided financial support to the Applicant in circumstances where it was not reasonable to do so on the evidence before it.

7.    Whether the Authority erred in law by holding that there was no evidence to suggest that the Deceased’s house was a common residence in circumstances where it was not reasonable to do so on the evidence before it.

122    During the hearing, I asked counsel for the Applicant whether the multiplicity of grounds, many of which were interrelated or overlapping in my view, might be condensed into fewer grounds. However, counsel submitted that notwithstanding any relationship between the question of whether the Applicant was a “dependant”, “de-facto spouse” or in an “interdependency relationship”, each of those issues require independent analysis. It followed, according to counsel for the Applicant, that in determining whether AFCA committed an error of law in reviewing the Trustee’s decision, it was necessary to consider each ground separately.

123    Nonetheless, for ease of argument, the Applicant grouped its grounds of appeal into the following three issues:

(1)    whether AFCA misconstrued the Trust Deed by failing to interpret the word “dependant” by reference to its natural and ordinary meaning (ground 1);

(2)    whether AFCA erred by failing to give proper, genuine and realistic consideration to the Applicant’s claims that she was a de-facto spouse of the deceased or in an interdependency relationship with the deceased (grounds 2 to 5); and

(3)    whether AFCA erred by concluding that there was no evidence of:

(a)    financial dependence or interdependence between the Applicant and the deceased (ground 6); and

(b)    the deceased’s residence being a common residence, shared by the Applicant and the deceased (ground 7).

124    The gravamen of the Applicant’s contention is that: (a) the Applicant was a dependant of the deceased; and (b) accordingly, AFCA should have concluded that the Trustee’s Fourth Decision, in its operation in relation to the Applicant, was not fair and reasonable in all the circumstances.

125    It is common ground that ground 1 need only be decided in the event that none of the other grounds (being grounds 2 to 7) are upheld. This is because each of those remaining grounds assumes that “dependant” is to be understood by reference to s 10 of the SIS Act rather than its ordinary and natural meaning (to the extent there is any difference). I nevertheless consider each of the grounds, including the parties’ respective submissions, in turn.

126    For completeness, I note that the Third Respondent filed a Notice of Contention on 24 March 2021, by which it contended that AFCA’s determination should be affirmed on the grounds that the determination was fair and reasonable in its operation. However, the Third Respondent did not make any submissions in relation to the Notice of Contention during the hearing and it goes no further than to express the Third Respondent’s contention in the most general of terms. Accordingly, I do not consider it necessary to say anything further concerning the Notice of Contention, particularly as I have concluded that the appeal should be dismissed.

Ground 1

Applicant’s submissions

127    By ground 1, the Applicant contended that AFCA erred by failing to have regard to the ordinary and natural meaning of “dependant”. The Applicant contended that an assessment of whether the Applicant was a “dependant” requires consideration of financial, emotional, physical, educational, social or sexual dependency. In particular, the Applicant submitted that AFCA misconstrued the definition of “dependant” by adopting a narrow interpretation of that status or relationship, limited to whether the Applicant was a de-facto spouse of the deceased, in an interdependency relationship with the deceased or otherwise financially dependent on the deceased.

128    The Applicant submitted that AFCA should have construed “dependant” broadly, taking into account the personal and emotional dependency of the Applicant, particularly in circumstances where “dependant” was not defined in the Trust Deed. The Applicant acknowledged that AFCA itself recognised that the definition of “dependant” was not “exclusive” and should therefore have taken its “natural meaning” in its reasons. Notwithstanding that approach, the Applicant submitted that AFCA failed to approach the determination in that way and therefore erred.

129    The Applicant further submitted that it is well accepted that “dependant” can be defined in a trust deed more expansively (or restrictively) than the SIS Act. In this instance, “dependant” was relevantly written in lower case in r 6.3(e)(v)(A) of the Trust Deed, which the Applicant submitted was a sufficient basis to infer that it was not intended to be used as a defined term in accordance with s 10 of the SIS Act.

130    In addition, the Applicant submitted that a complying superannuation fund is at liberty to adopt its own definition of “dependant” in its standard trust deed. The Applicant therefore contended that applying the natural and ordinary meaning of “dependant” does not offend the operation of the SIS Act, nor does it trigger the tiebreaker provisions of the Trust Deed in cl 1.75 which defer to the operation of the SIS Act in the event of any inconsistency.

131    The Applicant referred to a number of decisions of the former SCT that supported its proposed interpretation of “dependant” in the Trust Deed, including:

(1)    D14-15\017 [2014] SCTA 163 at [60], in which the SCT considered that the “close personal relationship and emotional support” given to an intellectually challenged child by his mother made her a dependant because the support went beyond the role of parent for an adult child.

(2)    D17-18\059 [2017] SCTA 144 at [34], in which the SCT referred to the spouse as being “financially, emotionally and physically dependent” on the deceased member at the time of his death. In the circumstances of that complaint, the SCT upheld the decision of the Trustee to pay the entire death benefit to the de facto spouse of the deceased member.

The Applicant also referred to D15-16\137 [2016] SCTA 71, D15-16\144 [2016] SCTA 75, D15-16\151 [2016] SCTA 89, D15-16\157 [2016] SCTA 91, D15-16\158 [2016] SCTA 93 and D16-17\065 [2012] SCTA 160, all of which are decisions of the SCT which she says “carried a multi-tiered definition” of dependant which adopted the ordinary meaning of the concept.

132    The Applicant conceded that there were some anomalies in relation to the operation of the Trust Deed, including that it contains 40 references to capital “D” dependant and only 4 references to lower case “d” dependant. Further, the Applicant does not dispute that, in this Court, words may be supplied, omitted or corrected where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53; 95 CLR 420 at 426-427 (Dixon CJ and Fullagar J), s 32 Federal Court of Australia Act 1976 (Cth).

133    Indeed, the Full Court of this Court recently stated in Commissioner of Taxation v The Trustee for the Michael Hayes Family Trust [2019] FCAFC 226; 237 FCR 567 at [36]-[37] (Steward J, with whom Griffiths and Derrington JJ agreed) that there are two conditions necessary to make such a correction, which the Court must be satisfied of to a high level of conviction: (a) the literal meaning of the (contractual) words is an absurdity; and (b) it is self-evident what the objective intention is to be taken to have been.

134    However, the Applicant submitted that I could not be satisfied that the words of the deed amount to an absurdity or that it is self-evident what the objective intention is taken to have been. For instance, there are too many references to lower case “d” dependant in the deed to immediately warrant the conclusion that it is a typographical error. Further and in any event, the Applicant submitted the deed is workable in its current form and need not be re-interpreted.

135    The Applicant also urged that I not construe the Trust Deed other than according to its ordinary words, as there has been no application for rectification. She said such an application would turn on the subjective intentions of the maker of the document and relief would need to be formally sought, with relevant facts pleaded and evidence required: see, eg, Trustee for the Michael Hayes Family Trust at [53]. In circumstances where no such application was made, the Applicant contended that it would be inappropriate that I decide the application on that basis.

136    The controversy as to ground 1 thus turns on whether the term “dependant” should be construed according to its ordinary meaning, so as to include physical, emotional and domestic forms of dependency, or whether it should be confined to the specified categories of dependency in the SIS Act and SIS Regulations that were considered by AFCA, being whether the Applicant was the deceased’s de-facto spouse or in an interdependency relationship with him at the time of his death.

Third Respondent’s submissions

137    In response, the Third Respondent advanced three contentions. First, that AFCA was right to construe references to “dependant” in the Trust Deed as though they were references to “dependant” within the meaning of s 10 of the SIS Act. Second, that in any event, the SIS Act definition of “dependant” is not exhaustive, which AFCA was correct to acknowledge in its reasons. Third, even if the definition of “dependant” is broader in the Trust Deed than the SIS Act, AFCA nevertheless engaged in an active intellectual process in considering whether the Trustee’s determination was fair and reasonable so far as it concerned the question of whether the Applicant was a “dependant”.

138    In relation to the first contention, the Third Respondent submitted that the question of the construction of “dependant” should be determined by the ordinary rules of construction of a superannuation trust deed. As the Trust Deed was created for the sole purpose of dealing with superannuation, it follows that it should be construed in that context. In particular, the Third Respondent submitted that the Court may infer that the Trust Deed was drafted specifically to comply with the SIS Act, including the SIS Act provisions regarding the payment of a members' death benefit to their dependants.

139    The Third Respondent submitted it is also relevant that the application form proffered by the Trustee, and completed by the deceased when applying to be a member of the superannuation fund, records the possible dependants a member may choose for a discretionary nomination as "spouse, de-facto spouse, child, interdependency relationship, and financial dependant". He submitted that any member completing the application form would naturally believe that was a full list of possible "dependants". The broader definition of "dependant" urged upon the Court by the Applicant would therefore make the application form inconsistent with the Trust Deed. Accordingly, the Third Respondent submitted that the Applicant’s broader construction should be rejected.

140    In addition, the Third Respondent submitted that the drafter of the Trust Deed may not have used a capital “D” for dependant so as to avoid narrowing the otherwise broad definition of “Superannuation Law” in the Trust Deed. For convenience, I mention again that “Superannuation Law” is defined to encompass the Income Tax Assessment Act 1997 (Cth), the Corporations Act 2001 (Cth), the Family Law Act 1975 (Cth), "any other present or future law ... which the Trustee determines to be a Superannuation Law for the purposes of this Deed", and any regulations made under any of those Acts. It is possible that one of more such Acts or regulations may have had different definitions of "dependant”, either at the time of the Trust Deed or in the future, thus leading to potential uncertainty in the operation of the Trust Deed. Accordingly, the Third Respondent submitted that absent any reason to infer that the SIS Act definition was not to be applied by the Trustee, the Court should accept his construction of the word “dependant”.

141    The Third Respondent also referred to Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 at 602, in which Waddel CJ in Eq agreed with the following statement of Warner J in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587 at 1610:

The court’s approach to the construction of documents relating to a pension scheme should be practical and purposive, rather than detached and literal … although there are no special rules governing the construction of pension scheme documents, the background facts or surrounding circumstances in the light of which those documents have to be construed … include … [that] the benefits provided under the scheme have been earned by the service of the members …

142    According to the Third Respondent, that is what AFCA did. It took a practical approach to the interpretation of the term “dependant”, mindful of the fact the SIS Act and SIS Regulations provided a framework for considering that question.

143    In relation to the second and third contention, the Third Respondent submitted that AFCA did not limit itself only to the definition of “dependant” in the SIS Act but also considered whether the Applicant was a dependant in the broader sense, including by reason of matters such as financial dependence. For example, AFCA took into account that the deceased had paid for dental work for the Applicant (at a one-off cost of $6,000) and that he had allowed her to use his key card to withdraw funds to pay for living expenses (at a recurring cost of approximately $300 per week). AFCA weighed that evidence in light of the fact that the Applicant was receiving a Centrelink allowance of $280 per week, and the lack of evidence of any joint expenses or transfers from the deceased to the Applicant, and concluded that the Applicant was not financially dependent upon the deceased.

144    The Third Respondent added that the function of the term "dependant" in the Trust Deed makes his suggested interpretation all the more obvious. Under the Trust Deed, the Trustee is required to exercise a discretion to distribute the fruits of the labour of the member, often accumulated over many years of work. It is consistent with that underlying basis of the Trustee's discretion that the member's funds be distributed to the member's "dependants", in the sense of persons whom may be said to have a moral claim to the member's funds, or to whom the member owed a moral obligation, not to a person who may have had some particular dependency on the member, of whatever extent and nature.

145    In addition, the Third Respondent noted that of the 44 references to “dependant” in the Trust Deed, only four of the references have a lower case “d”, making it likely that the difference was merely of a typographical nature. During oral submissions, counsel for the Third Respondent addressed each reference to make clear that there was no apparent or logical reason for these references being in lower case “d” as opposed to upper case “D”. For example, Division 2 of the Trust Deed sets out entitlements and specifies to whom those entitlements are to be paid by reference to lowercase “d” dependants. The exception to those entitlements in cl 7.1 of the Trust Deed refers to capital “D” dependants. The Third Respondent contended that it would be illogical for the same class of persons to be defined inconsistently in the Trust Deed. In other words, the Third Respondent relied on the inexplicable conflict between using a lowercase “d” when referring to the prescription to whom payment can be made under the Trust Deed and using an uppercase “D” when referring to disentitling circumstances or exceptions as support for the proposition that “dependant” was to be understood by reference to the SIS Act.

146    The Third Respondent also distinguished between a person who is a "dependant" of a member and a person who was “dependent upon” the member. This submission is directly contrary to the Applicant’s submission that a “dependant” means the condition of “depending on something or on someone for what is needed”. According to the Third Respondent, that submission confuses the noun, "dependant", with the adjective, "dependent". The Third Respondent submitted that a person may be dependent upon another for something in their life, without being that person's "dependant", both generally and particularly within the meaning of the Trust Deed. It follows that even if it was found that the Applicant "depended" upon the deceased in specific ways, it does not follow that she was a "dependant" of the deceased. That is consistent with AFCA’s reasoning in relation to this issue.

147    Based on those considerations, the Third Respondent submitted that ground 1 should be dismissed because AFCA did not misconstrue the Trust Deed by failing to interpret the word “dependant” in accordance with its natural and ordinary meaning.

Consideration of ground 1

148    In order for AFCA to properly exercise its power to review the Trustee’s decision, it was necessary in the circumstances of this case for AFCA to determine whether the Applicant was a dependant of the deceased. For the reasons that follow, I am not persuaded that AFCA misconstrued the definition of “dependant” in the trust deed, or erred in finding that the Applicant was not a dependant of the deceased.

149    The Applicant submitted essentially that AFCA should have been given a broader meaning to “dependant”, one consistent with its natural and ordinary meaning that goes beyond the categories provided for in the SIS Act. The foundation of this submission is that because “dependant” is not capitalised “D” in the Trust Deed, it is not correct to construe its meaning by reference to the relevant superannuation legislation. I do not accept the Applicant’s contention in relation to ground 1 of the further amended notice of appeal.

150    The inconsistency with which “dependant” was defined in the Trust Deed seems, in all likelihood, to be explicable as a typographical error. Apart from the fact that the vast majority of references in the Trust Deed are capitalised, the example proffered by the Third Respondent illustrates that the error appears to have been accidental. Indeed, it would be illogical for Division 2 of the Trust Deed to operate in such a way that entitlements and details about whom those entitlements are to be paid should be understood by reference to lowercase “d” dependants, whereas the exception to those entitlements in cl 7.1 of the Trust Deed be understood by reference to capital “D” dependants.

151    In any event, it is clear from its reasons that AFCA did not confine itself to the arguably narrower categories of dependants in the SIS Act. To the contrary, AFCA expressly took into account matters such as whether the Applicant was financially dependent upon the deceased before concluding that the Applicant was not a dependant of the deceased. That approach is consistent with a broader definition of “dependant” urged upon the Court by the Applicant.

152    There are further reasons why I have rejected the Applicant’s contention in relation to ground 1 concerning the meaning of dependant, even if the Applicant should be correct about the significance of the use of lower case “d” for “dependant”. These reasons concern the contention that dependant includes emotional dependency. The difficulties inherent in this contention, were it accepted, are numerous and readily apparent. First, it is an unorthodox construction of dependant and there is nothing in the Trust Deed that would support such a novel and extended meaning of dependant. Second, the concept of emotional dependency, while no doubt real and meaningful psychologically, is undoubtedly a spectrum so broad and intangible that it would be vague, meaningless and uncertain if imported into the meaning of dependant under the Trust Deed, at least without a separate definition of emotional dependency. Third, the forensic, analytical and practical issues that a trustee would confront if required to determine whether a person was emotionally dependent are so legion that in the absence of an express inclusion of emotional dependency, it may be strongly inferred that is not the kind of dependence to which the Trust Deed refers.

153    It would be laborious to describe the various ways in which such a construction of dependant would cause mischief. A few examples will suffice. Given the predicate that the member is deceased when the trustee is called upon to exercise its discretion in relation to a death benefit nomination, how exactly is the trustee, and later AFCA, to consider whether and in what sense the complainant, for example, was an emotional dependant? The objective badges of financial dependency, such as living together, or having shared bank accounts and the like, would be of little or no assistance in examining whether the complainant was emotionally dependent on the deceased member. If the Trustee were required to grapple with the meaning of emotional dependence in this instance, untutored by any definition in the Trust Deed, the practical impediments to doing so would undoubtedly include significant delay and cost associated with whatever investigations the Trustee may be required to make. In short, the importation of emotional dependency into the meaning of dependant under the Trust Deed is so manifestly unworkable that it could not have been intended.

154    In my view, AFCA was right to construe references to “dependant” in the Trust Deed as though they were references “dependant” within the meaning of s 10 of the SIS Act. Moreover, even if it were wrong to do so, AFCA nevertheless engaged in an active intellectual process in relation to the question of whether the Applicant was a dependant, understood more broadly, and in arriving at a conclusion that the Trustee’s Fourth Decision was fair and reasonable in all the circumstances I have described above. I therefore reject ground 1 of the appeal.

Grounds 2 to 5

Applicant’s submissions

155    In relation to grounds 2 to 5 of the further amended notice of appeal, the Applicant made the following submissions in support of its contention that AFCA failed to give proper, genuine and realistic consideration to whether the Applicant was a de-facto spouse or in an interdependency relationship with the deceased.

156    First, the Applicant submitted that AFCA erred by regarding eight common law factors as necessary elements to conclude that the Applicant and deceased were in a spousal relationship. Rather such indicia are but some factors, among others, that should be weighed in the balance when considering the nature of the relationship between the Applicant and the deceased. For instance, while AFCA initially described the eight factors as being “indicative” of a spousal relationship, it later referred to them as being “necessary” elements.

157    The Applicant submitted that by reason of this unduly narrow approach, AFCA failed to give proper, genuine and realistic consideration to whether the Applicant was a de-facto spouse of the deceased. If established, it would follow that AFCA did not engage in an “active intellectual process” in relation to the issues raised by the parties and therefore committed an error of law: see, eg, Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [43]-[46] (Griffiths, White and Bromwich JJ); Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] (Middleton, Moshinsky, Anderson JJ)).

158    Further, or in the alternative, the Applicant submitted that AFCA failed to take into account relevant evidence which supported a conclusion that the Applicant and deceased were in a spousal relationship. For example, the Applicant said that AFCA did not consider evidence from the Applicant that:

(1)    she received no payment for caring for the deceased throughout a period of declining health during which the deceased was unable to stand up or control his bowels;

(2)    she had fond feelings towards the deceased and the deceased called her by the nickname “Bunny”; and

(3)    they kissed daily and had sexual relations prior to the deceased’s health declining.

159    The Applicant submitted that had AFCA considered the relevant material, it would have been able to reach a conclusion as to whether the Applicant was in a spousal relationship with the deceased, rather than being “uncertain” and “unclear” as to the nature of their relationship.

160    In addition, the Applicant submitted that AFCA misconstrued the concept of a spousal relationship. In this regard, the Applicant submitted that statutory interpretation must begin with a construction of the text of the statute, taking into account the context, including the purpose and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47] (French CJ, Hayne, Heydon, Crennan and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). In this instance, the relevant provision was s 10 of the SIS Act, which provides that a dependant includes:

“… another person who, although not legally married to the person, lives with the person on a genuine domestic basis as a couple.”

[Emphasis added]

161    The Applicant contended that AFCA erred by focusing on whether the deceased’s residence was a “common residence”, rather than considering whether the Applicant and deceased lived together. The Applicant submitted that was a difference of substance because it led AFCA to place undue weight on the Applicant “maintaining her own residence”, even though she provided a rational and logical explanation for doing so. It followed, according to the Applicant, that AFCA misconstrued, or misapplied, the statutory test by importing an additional requirement into s 10 of the SIS Act; namely, that a couple must live together on a full-time basis to be living with another person on a genuine domestic basis as a couple.

162    The Applicant submitted that the fact she maintained a separate residence should not have precluded a finding that she was in a spousal relationship and AFCA’s approach was contrary to the evidence that the Applicant kept clothes at the deceased’s residence and spent an increasing amount of time there as his health declined. The Applicant buttressed this contention by referring to the following passage in Drury v Smith [2012] NSWSC 1067 at [104] (Hallen AsJ):

The concept of "living together" does not import any concept of proportion of time. In particular, it does not require that a couple live together in a common residence on a full-time basis. On the basis that one, or both members of the couple may also be legally married, or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for only part of the relationship: Moby v Schulter [2010] FamCA 748, per Mushin J, at [140] - [141].

163    The Applicant also contended that AFCA erred in law by failing to give proper, genuine and realistic consideration as to whether the Applicant was in an interdependency relationship with the deceased, within the meaning of s 10A of the SIS Act and reg 1.04AAAA(1)(a) of the SIS Regulations. Section 10A(1) provides, inter alia, that two persons (whether or not related by family) have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)     they live together; and

(c)    one or each of them provides the other with financial support; and

(d)    one or each of them provides the other with domestic support and personal care.

Moreover, reg 1.04AAAA(1)(a) states that all of the circumstances of the relationship must be taken into account and then sets out a number of inclusive “matters” to be considered where relevant.

164    AFCA’s reasons in relation to whether the Applicant was in a relationship of interdependency are briefly stated. The brevity of AFCA’s reasons on this point would appear to be on the basis that the matters set out in reg 1.04AAAA(1)(a) are “very similar to the factors for a de-facto relationship, with the addition of whether the relationship was intended to be permanent and whether the relationship was one of mere convenience.” The Applicant submitted that AFCA’s reasons did not reveal an active intellectual process, and that it failed to properly identify or consider various circumstances relevant to the enquiry. For example, the Applicant contended that:

(1)    AFCA failed to make any reference to the extensive amount of domestic support and personal care the Applicant provided to the deceased; and

(2)    AFCA had regard to irrelevant considerations, including whether the Applicant “lived permanently” with the deceased, when that was not required by s 10A(1)(b).

Third Respondent’s submissions

165    In response, the Third Respondent submitted that AFCA manifestly gave proper, genuine and realistic consideration to whether the Applicant was the “spouse” of the deceased or in an “interdependency relationship” with the deceased. I outline each of those submissions in turn.

166    First, the Third Respondent submitted that AFCA correctly identified the relevant considerations necessary to evaluate whether the Applicant and deceased were living together on a genuine domestic basis and therefore in a spousal relationship. More specifically, the Third Respondent disputed the submission that AFCA treated the eight indicative common law factors as being “necessary elements” or “pre-conditions”. Rather, the Third Respondent submitted that AFCA carefully considered the evidence regarding each of those factors and then weighed that evidence in the balance in coming to its conclusion

167    The Third Respondent also submitted that AFCA was aware of the matters relied upon by the Applicant, even summarising much of that information and the underlying source material in its reasons. The fact that all the evidence is not recited in AFCA’s determination does not mean that it was not considered. Accordingly, the Third Respondent submitted that the Applicant’s contention was a bare assertion, predicated on the all-too-common error of reviewing reasons with “an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

168    The Third Respondent further contended that AFCA did not import a requirement that the Applicant and deceased had to live together “on a full time basis” in determining whether the Applicant “lived with” the deceased. Instead, AFCA simply found that they did not share a common residence based on the material submitted by the Applicant. The Third Respondent submitted that such a finding was plainly open to AFCA, given the Applicant provided inconsistent statements as to when she began staying at the deceased’s residence, ranging from April or May 2014 to an unspecified date in 2015, as well as vague evidence regarding how frequently she stayed at the deceased’s North Fitzroy residence.

169    The Third Respondent added that the very nature of the claim made by a dependant in this context arises because two people are living in the same household, with one providing care and the other providing financial support. Regulation 1.04AAAA(3)(c) of the SIS Regulations contemplates that persons may live temporarily apart for reasons beyond their control, such as a temporary work commitment overseas, but is not directed to a situation where one of the parties maintains their own residence for their own personal reasons and so does not live with the other party permanently.

170    This approach is consistent with a recent decision of Brereton JA in the NSW Court of Appeal in Yesilhat v Calokerinos [2021] NSWCA 110, in which his Honour observed at [134]:

Each of the three relevant categories of eligibility [in the Succession Act 2006 (NSW)] therefore involves “living together”, a concept which involves mutual living in a common residence, at least to some extent, though not necessarily exclusively or on a full-time basis. It is not essential to a finding of a de facto relationship that there be unbroken common residence, and it is not incompatible with the existence of a de facto relationship, as defined, that a party spend some nights each week elsewhere than in the “matrimonial home”. This is supported, in the case of a de facto relationship, by Interpretation Act, s 21C(3)(b), which in referring to “(b) the nature and extent of their common residence”, acknowledges that its nature and extent may vary. Many authorities, some of which are referred to below, acknowledge that continuous full-time cohabitation is not essential, although the reason for the absences will be relevant: thus absence for work travel, or leisure, will rarely if ever be inconsistent with “living together”, whereas absence because the person is maintaining another household might well be so, even if not invariably. However, some element of common residence is indispensable. As will appear, no authority holds that persons can “live together” or be members of the same household if they do not, to some extent, have a common residence.

[Emphasis added]

171    In relation to whether the Applicant was in an “interdependency relationship”, the Third Respondent contended that AFCA properly identified the consideration relevant to assessing whether there was an interdependency relationship and assessed the evidence against those requirements. The Third Respondent made only brief submissions in relation to this issue, contending simply that there was no error in the approach AFCA adopted given the overlap between this issue and the question of whether the Applicant was a de facto spouse of the deceased.

Consideration of grounds 2 and 3

172    As to grounds 2 and 3, I am satisfied that AFCA gave proper, genuine and realistic consideration to whether the Applicant was a spouse of the deceased.

173    The Applicant submitted that AFCA failed to consider and engage with relevant evidence that supported a finding that the Applicant was a spouse of the deceased. In particular, the Applicant referred to the following statements from her statutory declaration dated 4 February 2019:

Max usually went to sleep at 11 pm. I would talk to him while undressing him, covering and kissing, saying, “Amy will come back after shower. Amy will put Bunny to bed.

…

We mainly had sex after we woke up in the morning. When I moved into Batman Street again in 2014, Max and I had not much sex because at that time Max was already not feeling well, but the cause was not found yet. After 2016 we barely had sex, and then he was advised not to have sex by his GP.

…

I would wash Max, but with lukewarm water and soap, pat it with baby powder after making it dry. During Max’s last period in life, I still slept with Max on the same bed because I took good care of him and made him so clean, also because I feared that I might not hear Max calling for me if I slept in the other room. I knew that seriously ill patient was quite afraid of loneliness. I didn’t feel that Max was dirty because I love him.

174    The Applicant also referred to the following passages from the statutory declaration of the deceased’s neighbour dated 5 June 2018:

…He told me he was feeling better and also had a level of comfort because his girlfriend had moved in with him, which meant if he had another fall, there would be someone else around.

I saw the lady who I now know as Amy driving Max’s car, bringing in shopping and clearly living at the house, saw them out walking together.

Amy’s reaction to Max’s death, when she told me, further strengthened my understanding that Amy and Max were a couple. This combined with my observations lead me to conclude that Amy and Max were in a de facto relationship and had been cohabiting from 2014 until his death.

175    The Applicant further contended that AFCA misconstrued the phrase “lives with” in the definition of spouse by assessing the nature and extent of a common residence instead of looking at whether the Applicant and deceased lived together.

176    As I have explained above at [44], a ‘spouse’ is defined to include someone who, although not legally married to a person, lives with the person on a genuine domestic basis in a relationship as a couple. Factors recognised by the common law as potentially indicative of a spousal relationship afford some guidance to the meaning and attributes of a spousal relationship, but are no more than objective characteristics commonly found in such relationships. I do not accept that AFCA treated the common law factors, which are at best indicative of a spousal relationship, as if they were pre-requisites to finding that the deceased and the Applicant were in such a relationship. Rather, AFCA carefully considered each of these factors and then weighed up the relevant evidence before concluding that that at the date of the deceased passing away, they were not living together in a genuine domestic relationship as a couple.

177    Further, at Part 3.3 of its determination, AFCA set out in detail a summary of the relevant evidence, including factual matters raised in the various statutory declarations which were provided to it. As is so often observed in an administrative law context, a decision maker is not required to explain his or her reasons about every piece of evidence relevant to a particular issue: Carrascalao at [45]. That approach is equally apposite here. The fact that AFCA did not expressly refer to specific evidence in determining that the Applicant was not a spouse does not mean that AFCA did not consider this evidence at all. Indeed, that such evidence was summarised in detail in AFCA’s determination suggests the contrary.

178    Further, I am not persuaded that AFCA misconstrued the phrase “lives with”. It is not disputed that one of the common law factors indicative of whether a person is a spouse is the nature and extent of a common residence. Whether a common residence exists is a matter of degree and it is a matter of fact in each case. The maintenance of a home is an objective fact that may be an indicator of an intention on the part of the person concerned to preserve his or her independence. Assuming this is the motivation, that too is not necessarily inconsistent with the parties living together in a genuine relationship as a couple. I accept that the fact that the Applicant’s home was provided to her as public housing is likely to have led to a more cautious approach on her part to relinquishing her residence, owing to the risk that if she later required public housing assistance, she may not be able to obtain an equivalent residence. Nevertheless, AFCA was entitled to have regard to the fact that the Applicant maintained her own residence and to regard that factor, in the context of other relevant evidence, as an indicator that the Applicant was not living with the deceased and thus was not in a spousal relationship with the deceased.

179    There was other evidence before AFCA that the deceased did not “live with” the Applicant. For example, the deceased had said to his friend of 30 years: “sometimes [the Applicant] stays here, sometimes she stays at her place”. In this case, AFCA considered the relevant evidence before it in a logical and comprehensive way before concluding that the Applicant did not “live with” the deceased and was therefore not a spouse of the deceased. This was not an unreasonable inference to draw from the evidence before AFCA.

180    Of course, AFCA’s determination should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at [22] (Neaves, French and Cooper JJ). Rather, AFCA’s determination should be understood in a “practical and common-sense manner”: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [47] (Flick, Griffiths and Perry JJ). In my view, it is evident from AFCA’s reasons read as a whole that it understood its statutory task and considered the relevant factual issues which arose in the present case for the purpose of determining whether the Trustee’s decision was fair and reasonable.

181    The question of whether, and over what period and to what extent, the Applicant and the deceased had been in an intimate relationship was plainly a difficult issue for AFCA to consider. If its statutory power and functions of AFCA were broader, arguably it may have been necessary to investigate this question further. That may have required investigating, among other things, what other persons, with direct knowledge of the Applicant and deceased’s living arrangements, might be able to give cogent evidence relevant to the character of their relationship. However, as I have said above, that is not AFCA’s role. Further, in the present circumstances, most significantly having regard to the aggregate provision made for the Applicant under the deceased’s will and by reason of the non-binding nomination of his estate as beneficiary of his death benefit, it was not necessary for AFCA to embark on such broader investigation or inquiry. This is because, when regard is had to the provision made for the Applicant, considered in the context of other factors I have referred to above, there was a sufficient basis for AFCA to conclude that the Trustee’s decision was fair and reasonable, having regard to the interests of the Applicant and other persons joined to the complaint.

182    AFCA clearly has some compulsive powers at its disposal. For example, AFCA may issue a written notice to any person it has reason to believe is capable of giving information or producing documents relevant to a superannuation complaint to give such information or produce such documents: s 1054A of the Corporations Act. AFCA also has power to require each party to a superannuation complaint, and any other person who is likely to be able to provide information relevant to the settlement of the complaint or whose presence would be conducive to settling the complaint, to attend a conciliation conference: s 1054B of the Corporations Act.

183    AFCA’s Complaint Resolution Scheme Rules are also instructive in this context. These rules form part of a contract between AFCA, superannuation entities and complainants, and are relevant to the determination of superannuation complaints by AFCA: QSuper at [17]. Most relevantly, under the rules AFCA may require a party to a complaint to do anything else that AFCA considers may assist AFCA’s consideration of the complaint. This may include requiring a party to a complaint to attend an interview before AFCA or appointing an independent expert (including a legal expert) to report back in relation to matters raised by a complaint.

184    It is, however, unclear whether beyond such investigative powers, AFCA is empowered to conduct some form of hearing, analogous to the process commonly followed by administrative tribunals such as the AAT, or to permit cross-examination or objections in relation to evidence. It is unnecessary for me to say any more about whether such procedures might be desirable, as in this case for the reasons I have given, such an approach was not be necessary to enable AFCA to discharge its statutory function. In later cases, AFCA may choose to refer the question of whether it has power to conduct hearings and, if so, how it might invoke that power by referring the issue as a question of law to the Federal Court pursuant to s 1054C of the Corporations Act.

Consideration of grounds 4 and 5

185    I also reject the Applicant’s contention that AFCA did not give adequate consideration to whether the Applicant and deceased were in an interdependency relationship. While AFCA may have used a different verbal formulation to the SIS Act in making its determination, being “lived permanently” as opposed to “lived with”, I am not persuaded that the difference indicates any substantive misunderstanding on AFCA’s part of the relevant question. The expression “lived with”, in context, means effectively the same thing. Plainly, the expression “lived with” means living together with the putative partner in an arrangement in which some element of common residence is indispensable. That arrangement, subject to the vicissitudes of spousal relationships, may equally be described as living permanently with the person concerned.

186    AFCA correctly set out the definition of interdependency relationship in its reasons. It referred to s 10A of the SIS Act, which sets out the cumulative factors that must be satisfied, and reg 1.04AAAA of the SIS Regulations, which provides additional matters to be taken into account. Regulation 1.04AAAA(3)(c) sets out the circumstances where two people who have a close personal relationship, but do not otherwise satisfy the requirements in s 10A(1), can still be considered to be in an interdependency relationship. The exception specified in the regulation is where the two people are temporarily living apart. On the evidence available to AFCA, there was no suggestion that the living arrangement between the Applicant and deceased was capable of being so described.

187    Further, AFCA noted in its determination that the SIS Regulations specify various factors to be taken into account in determining whether there is an interdependency relationship. AFCA noted that these factors are very similar to those indicative of whether a person is a de-facto spouse, with the addition of whether the relationship was intended to be permanent and whether the relationship was one of mere convenience. AFCA had already considered those factors in detail earlier in its determination in relation to whether the Applicant was in a spousal relationship with the deceased and it was not required to engage in what would have been a repetitious recitation of the relevant criteria. Indeed, the mere fact that AFCA did not expressly refer to these requirements in detail does not mean that it did not critically engage with and consider these factors in reaching a conclusion that the Applicant was not in an interdependency relationship with the deceased.

Grounds 6 and 7

Applicant’s submissions

188    As to grounds 6 and 7, the Applicant submitted that it was unreasonable for AFCA to conclude that there was “no evidence" of financial support provided to or by the deceased or evidence that the deceased’s residence was a common residence.

189    The Applicant contended that AFCA’s conclusion in relation to the absence of financial support was unreasonable having regard to evidence that:

(1)    the deceased gave the Applicant access to his money to enable her to pay for household expenses;

(2)    the deceased paid for the Applicant’s dental expenses and all her clothes, utilities, repairs, alterations to the home and personal care expenses; and

(3)    the Applicant was named a beneficiary in the deceased’s will, indicating that the deceased intended to cater for her financial needs.

190    The Applicant further contended that AFCA’s finding that there was no common residence was unreasonable having regard to evidence that:

(1)    the Applicant had lived with the deceased from around mid-2014;

(2)    a witness observed the Applicant and deceased “regularly” entering and leaving the house;

(3)    a witness had been told by the deceased that “his girlfriend had moved in with him so that if he fell someone would be around”;

(4)    the Applicant and the deceased slept in the same bed;

(5)    the Applicant kept her clothes at the deceased’s house; and

(6)    the Applicant continued staying at the house after the deceased’s passed away.

Third Respondent’s submissions

191    In response, the Third Respondent submitted that AFCA’s references in the Determination to there being “no evidence” to support the financial support or common residence were clearly references to “no documentary evidence”, “no independent evidence” or no “corroborative evidence”. Contrary to the Applicant’s contention, the Third Respondent submitted that AFCA’s determination refers at length to all the material it considered – including matters relevant to the questions of “financial dependence” and a “common residence” – and AFCA considered that evidence in a deliberative way. Thus, the Third Respondent submitted that AFCA’s determination was not unreasonable. Rather, AFCA proceeded rationally and logically from the absence of evidence to conclude that the Applicant was not a “dependant” of the deceased.

Consideration of grounds 6 and 7

192    I am not satisfied that AFCA failed to consider relevant evidence in relation to financial support provided to or by the deceased or evidence that the deceased’s residence was a common residence.

193    In relation to the question of financial dependence, AFCA acknowledged that the deceased paid for all the household groceries and utilities, the expenses on the car which he allowed the Applicant use and also that he had paid for the Applicant’s one-off dental expenses. Notwithstanding, AFCA expressed a number of concerns about the evidence, noting as follows:

The complainant has indicated that at the time of the deceased member’s death she was on Centrelink new-start allowance and was receiving $280.00 per week. She also says the deceased member covered their living expenses and provided $300 a week to run the house. She says she had his key card and would withdraw these funds.

There has been no evidence provided to establish this. However, even if this arrangement was in place, this would be consistent with someone who, because of his health, was unable to get to the bank or shop for the items required to run a household. It appears likely the deceased member gave the complainant access to his money to enable her to meet his own needs and as a form of payment for his care.

The complainant has provided a photograph of a cheque that was provided to her in November 2016 for $6,000. This was for her to have her teeth fixed. This is explicable as a one-off gift.

There has been no evidence provided of joint expenses or transfers to or from the complainant or deceased member’s bank accounts.

194    Having regard to those matters, AFCA concluded that there was no evidence of financial support provided by or to the deceased member and, accordingly, it could not be satisfied that the Applicant was financially dependent on the deceased.

195    In relation to the question of a common residence, it is similarly apparent that AFCA took into account evidence that the Applicant had stayed at the deceased’s home on occasion, had left clothes at the deceased’s residence and stayed overnight with increasing frequency as his health declined. Despite that evidence, AFCA regarded it as significant that the Applicant maintained her own residence throughout her relationship with the deceased and there were only scant, cursory discussions about cohabiting at the North Fitzroy property on a permanent basis. Accordingly, AFCA determined that there was no evidence before it to suggest that the deceased’s residence was a common residence.

196    This is a cognate consideration to that referred to above in relation to the question of whether the Applicant and the deceased “lived with” each other. The question of financial dependency in appropriate circumstances is a factor relevant to that question, though it arises under a different taxonomy. Here, the fact that the Applicant had an income from Centrelink and maintained her own residence, are each factors which are clearly germane also to the question of whether the Applicant was in a relationship of financial dependence and/or lived with the deceased in a common residence.

197    In my view, these are instances in which AFCA carefully and rationally engaged with the relevant material in concluding the Trustee’s decision was fair and reasonable. In circumstances where AFCA clearly made reference to the objective evidence relevant to the question of financial dependency and/or a common residence, it is clear that “no evidence” should be taken as meaning there was no independent or corroborative evidence to substantiate these claims. The Applicant’s construction seeks to read “no evidence” in a literal way that is entirely divorced from context. It follows that AFCA did not fall into any error and, for those reasons, I reject grounds 6 and 7.

Disposition

198    In my view, AFCA made no legal error in finding that the Trustee’s Fourth Decision was within power and fair and reasonable in its effect, having regard to the interests of the Applicant as well as to those interests of other parties joined to the complaint. AFCA carefully considered and weighed the objective evidence against the representations made by the Applicant in support of her complaint, and made its determination on that basis. There is nothing in AFCA’s reasons that reveals any misconception on its part as to its statutory task and there is no omission in the consideration of the material before it that would indicate it failed to take account of matters raised by the Applicant in support of her complaint. I have therefore concluded that there is no demonstrable error that could support a conclusion that AFCA committed a legal error in upholding the Trustee’s Fourth Decision.

199    Accordingly, the appeal is dismissed with costs.

Associate:

Dated:    30 March 2022