Federal Court of Australia

Lingard v Commonwealth Bank Officers Superannuation Corporation Pty Limited [2024] FCA 174

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The parties file and serve any submissions as to costs, not to exceed three pages in length, within 14 days of the date of this Order.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J

INTRODUCTION

1    The Applicant (more correctly, the Appellant), Ms Hayley Elizabeth Lingard, is aggrieved by a decision of the Second Respondent, the Australian Financial Complaints Authority Limited (AFCA), which resolved an objection she had made against a decision of the First Respondent, Commonwealth Bank Officers Superannuation Corporation Pty Limited, which was adverse to her interest. In affirming the decision of the First Respondent, AFCA found that Ms Lingard was not a dependant, whether a de facto, spouse or a person in an interdependency relationship, of Mr Jamie John Ogden, the deceased member of the Commonwealth Bank Group Super (the Fund), of which the First Respondent is the trustee. The consequence of that decision was that Ms Lingard received no provision from Mr Ogden’s death benefit held in the Fund.

2    Section 1057 of the Corporations Act 2001 (Cth) provides that a party to a superannuation complaint may appeal to this Court, on a question of law, from AFCA’s determination of the complaint. Ms Lingard has purported to do so by these proceedings, commenced by Notice of Appeal filed on 2 November 2022, amended and filed again on 7 November 2022, and amended further on 26 October 2023 (Second Amended Notice of Appeal).

3    Ms Lingard represented herself at the hearing, despite her efforts since late 2022 to obtain legal assistance. For that reason, AFCA was granted leave to withdraw its submitting notice filed 25 November 2022, and provided brief submissions to assist the Court on the relevant legislative provisions and common law principles relevant to the issues arising from the Second Amended Notice of Appeal. The Court is grateful for that assistance. It did not otherwise enter the fray. As was appropriate, the First Respondent lodged a submitting notice on 17 November 2022. By Order dated 23 October 2023, Ms Lingard was ordered to serve the Second Amended Notice of Appeal and supporting affidavits on Mr Ogden’s children, Stephanie Odgen (the Third Respondent) and Benjamin Odgen (the Fourth Respondent). They were represented by Counsel on the hearing of the Appeal.

Background

4    In late 2008, Ms Lingard and Mr Ogden commenced a romantic relationship. They were engaged to be married on 18 August 2012.

5    On 25 December 2015, Mr Ogden signed a non-lapsing Death Benefit Nomination (NLN) in respect of a death benefit held in the Fund. In the NLN, the Mr Ogden nominated his children, Stephanie Odgen and Benjamin Odgen, to each receive a 40% share of the death benefit, and Ms Lingard to receive a 20% share.

6    In October 2016, the relationship between Ms Lingard and Mr Ogden ended, although Ms Lingard had moved out of their common residence in September 2015. Approximately 1 year after the relationship ended, in late 2017, Ms Lingard and Mr Ogden commenced another relationship.

7    On 6 September 2019, Mr Ogden died. Under the CBA Consolidated Trust Deed (CTD), whether Ms Lingard’s death benefit entitlement could be paid to her by the First Respondent depended on whether, at the time of Mr Ogden’s death, she was Mr Ogden’s spouse, wholly or substantially dependent on him, the holder of a right to look to him for financial support, or a dependant under the Relevant Law, being the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) (CTD, r F1.2).

8    On 13 August 2020, the First Respondent made an initial decision to distribute the death benefit according to the nominations within the NLN (the First Decision). The mother of Stephanie Ogden and Benjamin Ogden, Michelle Haworth, Stephanie Ogden herself, and Darren Ogden, executor of Mr Ogden’s estate, objected to the First Decision on the basis that Ms Lingard was not a “dependant” of Mr Ogden under s 10 of the SIS Act, and therefore, was not entitled to receive any benefit.

9    On 29 December 2020, the First Respondent revised the First Decision. In its Second Decision, the First Respondent found that a de facto relationship between Ms Lingard and Mr Ogden did not exist at the time of his death, and on that basis, Ms Lingard was not an eligible superannuation dependant. Notwithstanding the Applicant’s objection to the Second Decision, it was affirmed by a final decision on 21 July 2021 that Ms Lingard was not a “dependant” of Mr Ogden at the time of death, for the purpose of s 10 of the SIS Act (and therefore, the CTD). Accordingly, the First Respondent decided the death benefit would be distributed equally to Stephanie Ogden and Benjamin Ogden, with no distribution to Ms Lingard (the Third Decision). Relevantly, the First Respondent decided that while Ms Lingard and Mr Ogden were, from late 2008 to late 2016, in a de facto relationship, that relationship ended in October 2016 and did not resume as a de facto relationship recognised at law after October 2016.

10    On 22 August 2021, Ms Lingard made a complaint to AFCA, disputing the Third Decision. On 30 September 2022, AFCA decided to uphold the Third Decision of the First Respondent (the AFCA Decision).

11    The First, Second and Third Decisions did not consider whether Ms Lingard was in an interdependency relationship with, or a financial dependant of, Mr Ogden. However, the AFCA Decision dealt with both possibilities and determined neither were made out.

12    By her Second Amended Notice of Appeal, Ms Lingard seeks orders giving effect to Mr Ogden’s NLN, being distribution of the death benefit in proportions consistent with the First Decision. Ms Lingard also seeks an order giving effect to a Notice to Produce dated 8 November 2023, which seeks production of the “Attachment A – Mercer Legal Advice 20 April 2021” (2021 Mercer Advice).

13    Although Ms Lingard has raised a question of law arising from the AFCA Decision, for the reasons that follow, her appeal must be dismissed, and the AFCA Decision affirmed.

THE RELEVANT LEGISLATION

14    AFCA’s dispute resolution function is established under the Corporations Act 2001 (Cth). Part 7.10A allows a person to make a complaint relating to superannuation under the AFCA scheme in specific circumstances. Ms Lingard’s complaint was made pursuant to s 1053(1)(j). It provides:

When complaints relating to superannuation can be made under the AFCA scheme

(1)    A person may, subject to section 1056, make a complaint relating to superannuation under the AFCA scheme, only if the complaint is a complaint:

…

(j)    that a decision by a death benefit decision-maker relating to the payment of a death benefit is or was unfair or unreasonable.

15    In respect of such a complaint, s 1055 of the Corporations Act provides, relevantly:

1055    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

…

(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

…

(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;

…

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.

16    Section 1057(1) allows a party to a superannuation complaint to appeal a decision of AFCA to this Court, on a question of law:

1057 Appeals to the Federal Court from determination of superannuation complaint

(1)    A party to a superannuation complaint may appeal to the Federal Court, on a question of law, from AFCA’s determination of the complaint.

(2)    An appeal by a person under subsection (1) is to be instituted:

(a)     not later than the 28th day after the day on which a copy of the determination of AFCA is given to the person, or within such further period as the Federal Court (whether before or after the end of that day) allows; and

(b)     in accordance with rules of court made under the Federal Court of Australia Act 1976.

(3)     The Federal Court is to hear and determine the appeal and may make such order as it thinks appropriate.

(4)     Without limiting subsection (3), the orders that may be made by the Federal Court on an appeal include:

(a)     an order affirming or setting aside the determination of AFCA; and

(b)     an order remitting the matter to be determined again by AFCA in accordance with the directions of the Court.

The AFCA Decision

17    In its decision, AFCA made the following findings in affirming the decision of the First Respondent to distribute the entire death benefit equally between Stephanie Ogden and Benjamin Ogden:

Who could receive the deceased’s death benefit?

Under the trust deed for the fund, the trustee can only pay a death benefit to a fund member’s legal personal representative, their spouse, their child, any person who in the opinion of the trustee was at the date of death wholly or substantially dependent on the member or who had a legal right to look to them for financial support, or any other person who is a dependant under ‘Relevant Law’.

Was the trustee required to give effect to the NLN?

The trustee could not give effect to the NLN to the extent it nominated the complainant [Ms Lingard] to receive part of the benefit. The trustee was required to give effect to the NLN to the extent it nominated the joined parties [Stephanie Ogden and Benjamin Ogden] to receive part of the benefit.

Was the complainant a dependant of the deceased?

The complainant [Ms Lingard] was not a dependant of the deceased [Mr Ogden] at the time of his death.

Is the trustee’s decision fair and reasonable?

The trustee’s decision to distribute the benefit equally to each of the joined parties is fair and reasonable in its operation in relation to the complainant and the joined parties in all the circumstances.

18    It is well established that the focus of AFCA’s complaints review function under the Corporations Act is on the decision made “in its operation …”, not the process that led to that decision: QSuper Board v Australian Financial Complaints Authority [2020] FCAFC 55; 276 FCR 97 at [64]. In the context of s 37(6), in the now repealed Superannuation (Resolution of Complaints) Act 1993 (Cth), which was in the same terms as s 1055(3), Mansfield J explained, in Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327; 97 FCR 361 at [48]:

Upon hearing a complaint, the tribunal must make its own decision. In the course of doing so, it must make findings of fact relevant to its deliberations. The hearing by the Tribunal is a hearing de novo. Ultimately, whatever findings the Tribunal must make standing in the shoes of the trustee[,] s 37(6) requires the Tribunal to decide whether the decision under review, in its operation, was fair and reasonable in the circumstances. The focus … is upon the consequence or outcome of the decision in its practical operation, rather than upon the process by which the decision under review came to be made.

(Citations omitted. Emphasis added.)

The Appeal

19    The Second Amended Notice of Appeal purports to identify five errors of law (Q1 -5):

1.    The AFCA determination erred in its finding that Jamie Ogden (the deceased) and I, Ms Lingard, were not in a de facto, spousal nor interdependent relationship. Section 44 (5) of the Family Law Act 1975 appears to have never been considered during the decision-making process, resulting in an unlawful, unfair, and unreasonable outcome.

2.    CBA Superannuation and AFCA both failed to notice considerable clerical errors and a major critical fault within the Mercer Memorandum of Advice (3 December 2020) which has led to a misapplication of the law in this matter; namely that financial nor legal separation between Ms Lingard and the deceased never occurred, therefore it is erroneous to consider the relationship in two parts, essentially failing to consider the relationship in its totality and the genuine contributions that have been made to the relationship.

3.    Legal factors, laid out in Roy v Sturgeon (1986) 11 NSWLR 454), namely the care and support of children and ownership, use and acquisition of property have been erroneously applied during the AFCA determination, which will be evidenced.

4.    In late July 2023, Ms Lingard (Applicant) became aware that the author of the Mercer Memorandum of Advice, Ms Lynda Purcell, is in fact an AFCA Panel Member. As such, it is impossible for AFCA to have been ‘independent’ or ‘impartial’ in their consideration of this matter. No declarations regarding any of conflicts of interest were made known.

5.    AFCA’s determination placed undue weight upon untested and disputed hearsay evidence. The Applicant intends to rely upon the Court’s higher standards of evidence to ensure that the law is suitably applied in this matter to support a fair and reasonable outcome.

(Emphasis in original. Errors in original.)

20    Nine grounds are also relied upon (G 1-9):

1.    The decision maker erred in law by finding against the weight of evidence that the relationship between the applicant and the deceased did not meet the definition of de facto relationship.

2.     The decision maker erred in law by giving substantial weight to hearsay evidence in favour of other parties in circumstances where the evidence was clearly in dispute, and unable to be tested and often evidenced to be false.

3.     The decision maker erred in law by failing to consider, or failing to give sufficient weight, to the nature of the relationship just prior to the short period of separation, and to overlooking the importance of considering the relationship in its totality and any associated contributions made to the relationship.

4.     The decision maker erred in law by failing to consider, or failing to give sufficient weight to the timing of, and context within which, the deceased made his NLN, specifically the relationship conditions that existed when the NLN was accepted by CBA Superannuation in December 2015, as we had ceased cohabitation around September 2015, yet remained spousal/de facto this supports that cohabitation and the public nature of our relationship were not key factors in our situation.

5.     AFCA is cited to be an independent and impartial body in its facilitation of their complaints process. The outcome of this matter was primarily determined based upon the findings of the Mercer Memorandum of Advice and as the report author is an active AFCA Panel Member, AFCA is unable to be independent nor impartial in this matter. In addition, at no time were any conflicts of interest declared to the Applicant.

6.     Significant and fairly evident clerical errors within the aforementioned Memorandum of Advice were not identified by CBA Superannuation nor AFCA in their assessment of this matter. One egregious and critical error regarding the misquotation of the Applicant, compounded by hearsay statements which have been evidenced to be false, has led to the misapplication of law. Requests by the Applicant to address this critical clerical error and the subsequent erroneous legal finding with AFCA have been refused.

7.    Due to the significant and critical nature of error/s identified in the aforementioned Mercer Memorandum of Advice, the Applicant holds concerns regarding further legal advice provided to CBA Superannuation by Ms Purcell which informed their final decision on 21 July 2021, noted as ‘Attachment A - Mercer Legal Advice 20 April 2021’ to this decision document.

8.    Ms Purcell’s dual role, the subsequent conflict of interest this then creates for AFCA and the fact critical errors already identified, which remain unaddressed, further compounds the relevance of this information, hence The Applicant seeks leave of the Court for an Order to grant the requested Notice to Produce regarding this document.

9.    The Applicant further attests that Ms Purcell’s dual role and the subsequent conflict of interest has unduly influenced AFCA’s process, namely that safeguards outlined in AFCA’s Operational Guidelines, which likely would have identified the aforementioned significant human error and misapplication of the law, were not effected, resulting in an unfair and unjust outcome.

(Emphasis in original. Errors in original)

21    Each of AFCA, Stephanie Ogden, and Benjamin Ogden filed Notices of Objection to Competency pursuant to r 33.30 of the Federal Court Rules 2011 (Cth) on the grounds that the questions in the Second Amended Notice of Appeal are not questions of law.

22    Whether the appeal raises a question of law is a matter of substance. The question(s) of law must be the very substance of the appeal, and not just a factual question formulated to be a purported legal question: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178; Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315. In Haritos, the Full Court said, at [94]:

… the issue must be approached as one of substance. In cases of doubt, the court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for the decision, and having considered all those matters, satisfy itself that there is in fact a question of law.

23    No formulation such as “erred in law” can reformulate a question into a question of law if it is not otherwise such a question: P v Child Support Registrar [2013] FCA 1312; 62 AAR 17 at [49].

24    The matter of defining questions of law has been clarified by several decades of common law. A list of established questions of law was set out in Rauchle v Q-Super Board [2022] FCA 1537 at [89]:

•    a question as to the meaning of an Act

•    questions of construction of the law or agreements

•    a finding of fact made of which there is no evidence to support it

•    a failure to afford procedural fairness

•    a wrong principle of law has been applied

•    a failure to take into account relevant (mandatory) considerations

•    determining matters to be taken into account when making a decision by reference to the construction of the statute conferring power

•    taking into account an irrelevant consideration

•    the decision is so unreasonable that no reasonable decision-maker would make it.

25    The importance of adequately formulating a question of law in an appeal notice has been frequently emphasised by this Court (see Child Support Registrar at [47]-[53]; Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 524; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; 38 AAR 55 at [17]-[18]). Such a question should be “stated with precision”: Child Support Registrar at [49], quoting Birdseye at [17]-[18]. In Birdseye, the Full Court explained at [18]:

It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the questions of law, the circumstances of the particular case and the orders sought on the appeal.

26    After citing that passage, Wigney J continued, in Child Support Registrar at [51]:

It is not legitimate to call in aid the grounds specified in the notice to read down the questions of law stated in the notice to what are truly questions of law. If the order sought is that the decision of the Tribunal is set aside, the grounds in support of that order should assume the resolution of the specified question of law in favour of the applicant and indicate, in a summary way, why that resolution requires the decision of the Tribunal to be set aside. Grounds drawn up in that way could not elucidate a question of law.

(Emphasis added. Citations omitted.)

27    The Second Amended Notice of Appeal is manifestly deficient and defective. None of the purported five questions of law in fact raises such a question. Reflecting on Griffiths J’s finding in Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417 (where his Honour dismissed the notice of appeal and ordered costs against the applicant), Kerr J said ([2016] FedJSchol 18):

A practitioner will have only him or herself to blame if as a result of a carelessly drafted notice of appeal he or she leaves a judge to articulate what the judge believes to be the question of substance of their own failure to do so and, in consequence, discovers the judge has answered that question in the negative.

… the Federal Court has authority to decide whether a notice of appeal states a question of law and if it does not, whether an appellant should have leave to amend the notice of appeal to remedy the defect. It is implicit in those words not only that leave may be granted; it may be refused.

28    Having been given two opportunities to reformulate her Notice of Appeal, Ms Lingard has made a serious attempt to plead her case in terms that addressed the relevant legal matters. However, it is also clear from the Second Amended Notice of Appeal that Ms Lingard has not understood the – at times, obscure – distinction between questions of fact and law. In her written submissions, she attempted to raise “[e]rrors of [f]act stemming from [e]rrors of [l]aw”. This Court cannot deal with errors of fact, whether or not they flow from alleged errors of law.

29    The Court may, in an appropriate case, be “prepared to frame questions in order to found its jurisdiction” where – for example – an applicant is unrepresented and it is “possible to discern a question which, if properly framed, could found the jurisdiction of the court” (Child Support Registrar at [53], quoting Hoe v Manningham City Council [2011] VSC 37; 183 LGERA 441 at [9]; Kolya v Tax Practitioners Board [2012] FCA 215; 87 ATR 474 at [8]).

30    It is tolerably apparent from the Second Amended Notice of Appeal, and from her written and oral submissions, that Ms Lingard challenges the AFCA Decision on two fundamental bases, from each of which it is possible to discern a question of law.

31    First – did AFCA err in law by failing to take into account relevant considerations, or in making a decision that was legally unreasonable? The error of law is said to manifest by the following factors:

    failure to consider s 44(5) of the Family Law Act 1975 (Cth) (Q1);

    failure to notice clerical errors in the Mercer Memorandum of Advice dated 3 December

2020 which led to a misapplication of the law (Q2, G6);

    erroneous application of Roy v Sturgeon (1986) 11 NSWLR 454 (Q3);

    undue weight given to untested, disputed and false hearsay evidence (Q5, G2); and

    failure to give sufficient weight to evidence of the relationship; (G1, G3, G4).

32    Second - was AFCA’s decision affected by actual or apprehended bias? This error is said to be manifest by the following factors:

    the author of the Mercer Memorandum of Advice dated 3 December 2020 (the 2020 Mercer Advice) was Ms Lynda Purcell, who is an AFCA Panel Member, and no conflicts of interest were declared (Q4, G5, G9); and

    the author of the Mercer Legal Advice dated 20 April 2021, which was provided to AFCA, was also Ms Purcell (G7, G8, G9).

33    In oral submissions, Counsel for Stephanie Ogden and Benajmin Ogden quite properly conceded that, characterised in this way, Ms Lingard had “managed to articulate the two key areas where there might be an issue”: the first being whether in reaching the decision about the status of the relationship between Ms Lingard and Mr Ogden as at the date of his death, AFCA failed to take into account relevant considerations, or made a legally unreasonable decision; the second being whether the decision was infected by actual or apprehended bias. By reason of this concession, it is appropriate that the Notices of Objection to Competency be dismissed.

Did AFCA err in law by failing to take into account relevant considerations, or in making a decision that was legally unreasonable?

34    Although Ms Lingard pointed to various matters which she alleges AFCA ought to have, but failed to consider, the gravamen of Ms Lingard’s complaint is that the decision was legally unreasonable.

Failing to take into account relevant considerations

35    Turning first to the issue of “relevant considerations”, it is apparent that, at their highest, these are complaints about questions of fact, not law, and are therefore not appealable. Ms Lingard contended that AFCA erred:

1.    by considering, assessing, and referring to the relationship between herself and Mr Ogden in two separate parts;

2.    in so doing, failed to take into account the factors in Reg 1.04AAAA Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regs), thereby dismissing the importance and relevance of the earlier portion of the relationship;

3.    in failing to take into account the absence of a family law settlement at the end of the earlier de facto relationship; and

4.    in failing to properly weigh the evidence.

36    The latter complaint is easily dismissed. It does not even raise a question of fact, let alone law. The weighing and evaluation of evidence is a matter for AFCA and is not generally susceptible to review by the Court. As was observed by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 410-411, in the context of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth):

A number of authorities was cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they did not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to their obligation to observe the requirements of natural justice, can inform itself as it chooses.  An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.

(Citations omitted. Emphasis added.)

37    Ms Lingard has not established that there was no evidence before AFCA upon which its conclusion could properly be based.

38    Similarly, there is no basis for Ms Lingard’s assertion that AFCA failed to take into account a relevant consideration, being the duration of the relationship overall, and so failed to take into account reg 1.04AAAA of the SIS Regs.

39    Contrary to Ms Lingard’s submission, each and every factor outlined in reg 1.04AAAA(1)(a)(i)-(ix) is not required to be taken into account in determining whether two persons have an interdependency relationship. Rather, although the statutory obligation is to take account of all the circumstances of the relationship, these factors are only to be taken into account where relevant. Nonetheless, the AFCA Decision refers specifically to the duration of the relationship; whether or not a sexual relationship exists; the nature and extent of a common residence; the degree of financial dependence or interdependence; the ownership, use and acquisition of property; the degree of commitment to a shared life; the care and support of children (including by contrasting the pre-2016 aspects of care and support); and the reputation and public aspects of the relationship.

40    Although Ms Lingard objects to the conclusions reached by AFCA in relation to each of these factors, and AFCA’s preference for the evidence of some witnesses over that of others, those complaints do not raise questions of law. They were matters solely within the decisional freedom accorded to AFCA.

41    Ms Lingard also contended that AFCA failed to take into account a relevant consideration, namely the absence of any property settlement upon the separation in 2016. How this consideration is said to be relevant was not fully explained. Ms Lingard stated the “misinterpretation regarding financial separation appears to have not been a considered factor in the AFCA determination”, notwithstanding that AFCA was “clearly made known” of it. As best I can understand the submission, erroneous information provided by third parties indicating that a settlement had been reached was a matter contained in the 2020 Mercer Advice, and that fact should have been taken into account in weighing the evidence of those third parties. If that is the basis of the submission, it rises no higher than a complaint about the weight given to various pieces of evidence. It does not raise an error of law.

42    In any event, there was no evidence of any such settlement and the AFCA Recommendation does not refer to any de facto property settlement following the separation of Ms Lingard and Mr Ogden in 2016. It is therefore unsurprising that there is no reference to any property settlement in the AFCA Decision. It is not at all clear how the existence, or otherwise, of a property settlement in 2016 could be relevant to the existence of a de facto relationship in 2019.

43    There is no basis for Ms Lingard’s complaint that AFCA erred in law by failing to take into account relevant considerations.

Making a legally unreasonable decision

44    The test of “unreasonableness” within the context of a review of the exercise of statutory powers is whether “an exercise of power … [is] so unreasonable that no reasonable person could have so exercised the power”. As was observed by the Full Court in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [58], the concept of legal unreasonableness “concerns the lawful exercise of power”. The Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory and does not involve the Court reviewing the merits of the decision (Eden at [59], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 322 at [66]). The Court in Eden said further at [62]:

… in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.

(Citations omitted. Emphasis added.)

45    It is trite to observe that human relationships are unique, and it is not possible to formulate precise criteria by which to assess the qualitative nature of a relationship between two people. The courts and legislature have attempted to provide some guidelines. In particular, the factors identified by Powell J in Roy v Sturgeon have informed those now found in the SIS Act, the SIS Regs and s 4AA(2) of the Family Law Act.

46    Nevertheless, on each occasion when a court comes to consider whether or not a couple is in a de facto relationship, or is a dependant, its answer will be informed by the reason for which the question is being asked, and by the statutory framework relevant to the circumstances in which the question is being asked. Thus, although authorities decided in different contexts may be analogous in some circumstances, they will not always answer the precise question in issue.

47    Ms Lingard has referred to extracts from Indjic v Stojanovic [2020] NSWSC 470 at [147] and Dahl & Hamblin [2011] FamCAFC 202; 46 Fam LR 229 at [16] (which quotes L and C (2006) DFC 95-327) to support her contention that the relationship between her and Mr Ogden needed to be considered in its entirety and that it was an error of law, in the sense that it was “unfair, unreasonable and unjust”, for AFCA to have considered it in two separate parts.

48    Indjic was concerned with an application for family provision under the Succession Act 2006 (NSW). The plaintiff needed to establish that she was a person with whom the deceased was living in a de facto relationship at the time of his death (s 57(1)(b)). Relevantly, the statutory provision provided that the existence of the relationship does not require proof of duration of any particular length (at [119]). In considering a relationship that was said to have spanned 25 years, Hallen J said, from [145]-[148]:

… the determination of the existence of a de facto relationship is essentially impressionistic. Such a relationship only exists because of the factual circumstances of the parties, unlike marriage, where there is a legal status immediately created at the time of the public ceremony and registration.

Accordingly, the court is often required to assess multiple pieces of circumstantial evidence. If there are sufficient pieces of evidence, when viewed cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076 at [64] (The Court). Ultimately, the conclusion as to the existence, or otherwise, of such a relationship will turn on an evaluative assessment of matters of objective fact.

Other cases make it clear that the term “de facto relationship” constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 at 685 (Kearney J); Light v Anderson (Court of Appeal (NSW), Handley JA, 4 August 1992, unrep) at 4–5; Bar-Mordecai v Hillston [2004] NSWCA 65] at [86], [125] (Mason P, Tobias JA and Davies AJA); Hayes v Marquis [2008] NSWCA 10 at [73]–[74] (McColl JA, Beazley JA agreeing).

In reaching the conclusion about the existence of the relationship, the court must also be aware of the concept of the diversity of relationships that exist between couples within our society and must not be lulled into social stereotyping. Thus, although said in another context, I agree with Bender FM (as her Honour then was) in Dakin v Sansbury [2010] FMCAfam 628 at [13], that:

… the nature of the relationship cannot be determined by looking at external societal views of what constitutes a de facto relationship, nor is it determined by what the parties themselves thought their relationship to be.

(Emphasis added.)

49    The first thing to observe is that the cases referred to at [147] were speaking of the definition of a de facto relationship. For example, as the New South Wales Court of Appeal said in Bar-Mordecai at [86], having referred to the authorities of Roy v Sturgeon and Simonis:

Among other things, these authorities establish that the definition is not to be dissected into discrete elements. It is, in the words of Kearney J in Simonis (at 685):

A single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.

50    The “concept” referred to is that of a woman “living with [a person of the opposite sex] as her husband on a bona fide domestic basis”: Bar-Mordecai at [86]. It is that concept which is not to be broken down into individual components. As the Court observed, “[t]he concept of ‘bona fide domestic’ relationship is not necessarily lost because there are bouts of selfishness or infidelity by one or both partners”: Bar-Mordecai at [125].

51    Secondly, courts have repeatedly emphasised the ‘evaluative’ and ‘impressionistic’ nature of the task of considering whether or not a de facto relationship exists. In Fairbairn v Radecki [2022] HCA 18; 275 CLR 400 at [28], in the context of the Family Law Act provisions, the High Court observed:

Section 44(1)(c) identifies the relationship which is the concern of the Act: “a relationship as a couple living together on a genuine domestic basis”. The existence of such a relationship is determined having regard to “all the circumstances” of a relationship; significantly, those “circumstances” include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstances is necessary for these to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matter, and to attach such weight to any matter, as may seem appropriate.

(Emphasis added.)

52    Dahl was concerned with whether the two periods during which the parties agreed they had been in a de facto relationship could be aggregated for the purposes of determining the two-year period necessary for the court to make orders for the alteration of property interests. In considering the specific amendments to the Family Law Act introduced by Part VIIIAB, the Full Court of the Family Court said at [21], and from [23]-[24]:

By the use of the word “periods” in s 90RD(2)(a) and s 90SB(a), Parliament must clearly have envisaged that a de facto relationship can breakdown and resume with the result that the original earlier period of the relationship and any resumed period (or periods) after other breakdowns are capable of aggregation to establish the total time of the relationship for jurisdictional purposes. If this was not the intention, why was the word “periods” introduced into the legislation?

…

We find it difficult to accept that Parliament intended to impose on litigants and the courts the burden of establishing, or finding, whether in a given case, a particular breakdown in a relationship was such that a resumption of the relationship would have to be categorised as a new relationship, or that that breakdown was merely some form of dividing line between periods of the relationship.

Accordingly, we think that the better view must be that the introduction into Part VIIIAB of the concept of “periods” and thus the possibility of the aggregation of periods, must mean that for the purposes of Part VIIIAB there can only be one relationship, albeit in some cases broken into periods.

53    The reasoning applicable to the decision in the case was based on specific statutory provisions not replicated in the SIS Act. It is of no assistance in the present case.

54    In the context of AFCA’s evaluation of her relationship with Mr Ogden, Ms Lingard pointed to the following factors in particular as evidencing the unreasonableness of the AFCA Decision: a separation of period of only 11 months; the “new normal” being the continuation of the relationship without cohabitation with near no public knowledge; “[p]hone, text and email messages showing they were more than just good friends” or in “a boyfriend/girlfriend relationship”; her interest as a beneficiary of a discretionary trust which owns the farm acquired during the first relationship; her assistance with work on the farm; her provision of bridging finance; her assistance with maintenance; her attendance to the care, transport and entertainment of Mr Ogden’s teenage children, including offers of school holiday opportunities for them; the “open” nature of their relationship as an explanation for the absence of public knowledge about their resumed de facto status; and three incidents of assistance and emotional support.

55    AFCA weighed the evidence provided by Ms Lingard against other evidence before it which included statutory declarations which said, inter alia, that Mr Ogden: had not been in a relationship with Ms Lingard since 2016; was not in a relationship with anyone at the time of his death; wished to be a free spirit; liked to have female friends, with no commitments; had been in casual relationships with several partners for at least the last two years of his life; following his separation from Ms Lingard in 2015/2016, remained good friends with her; continued to help Ms Lingard as and when help was required, as he did with all of his friends and family; never attended any family holidays or family events with Ms Lingard after their separation in 2016; and considered his children to be his priority.

56    It was within the bounds of the decisional freedom bestowed upon AFCA to determine whether Ms Lingard and Mr Ogden were living together on a genuine domestic basis in a relationship as a couple. The mere fact that, with all the same evidence before them, reasonable minds might differ on the answer to that question does not mean that AFCA’s decision is legally unreasonable. Indeed, Ms Lingard has not established that no reasonable person could reach the same conclusion.

57    No error of law is established.

Was the AFCA Decision affected by lack of procedural fairness and/or bias?

58    Ms Lingard submits that “it is impossible for AFAC to be ‘independent and impartial’ in” the AFCA Decision (errors in original), in breach of AFCA’s Operational Guidelines (the Guidelines) (specifically, A.2.1(c)(i)). It is also alleged that this has caused a failure to afford Ms Lingard with procedural fairness (A.2.1(c)(ii)). This is alleged to be a result of Ms Lynda Purcell’s authorship of legal advice, the 2020 Mercer Advice, which was relied upon by the First Respondent in the Second Decision; and Ms Purcell’s affiliation with, inter alia, AFCA as a panel member.

59    Guideline A.2.1(c) reads:

A.2.1 (c) – [AFCA will] consider complaints submitted in a way that is:

(i) independent, impartial, fair

(ii) in a manner that provides procedural fairness to the parties

[…]

60    There is no substance to the allegation of lack of procedural fairness. Whether or not the First Respondent relied on legal advice that contained “clerical errors” is immaterial to the AFCA Decision. There is no evidence that AFCA was privy to the advice and, to the extent that the errors were reflected in the Second and Third Decisions, they too were immaterial by the point that AFCA had undertaken its de novo review. Ms Lingard also did not contend that the errors were repeated in the AFCA Decision, and she was afforded the opportunity to comment on the AFCA Recommendation before that final decision was made. No procedural unfairness has been made out.

61    Actual bias requires that the decision-maker has effectively pre-determined the matter before them, or approached it with a closed mind, being “so committed to a particular outcome that he or she will not alter that outcome, regardless of what evidence or arguments are presented”: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507. In this case, there is no evidence of actual bias. As the Supreme Court of New South Wales noted in Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15]:

Disagreement with the reasoning, or the outcome, provides no basis for an assertion of actual bias.

62    The test of apprehended bias is not in contention. It is as stated by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [20], per Gleeson CJ, McHugh, Gummow and Hayne JJ, with Callinan J concurring. As reiterated by the High Court in Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11], per Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ:

The apprehension of bias principle is that ‘a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’ … Its application requires two steps: first, ‘it requires the identification of what it is said might lead a judge … to decide a case other than on its legal factual merits’; and, second, there must be articulated a ‘logical connection’ between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

63    In Webb v The Queen [1994] HCA 30; 181 CLR 41 at 74, Deane J identified four, sometimes overlapping, categories of case in which a reasonable apprehension of bias may arise:

The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first … and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third … and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to an apprehension of bias.

(Emphasis added.)

64    In Notesco Pty Ltd v Australian Financial Complaints Authority [2022] NSWSC 285; 160 ACSR 44, on which Ms Lingard relied, the Court said, at [146], that in analysing whether bias existed:

… [t]he impartiality of the decision-maker – or the absence of bias – must be considered in the legal, statutory and factual context in which a decision is made …

(Citations omitted. Emphasis added.)

65    As to the factual context, there is no dispute that Ms Purcell was a Panel Member of AFCA. It is also apparent from the 2020 Mercer Advice that Ms Purcell was not advising AFCA – her client was the First Respondent. She was instructed to review the First Decision.

66    As has already been explained, AFCA’s obligation was to hear the matter de novo and to make its own decision based on the evidence that was before it. The AFCA Decision describes the information it took into account in making its decision. The 2020 Mercer Advice is not mentioned in the AFCA Decision, nor would one expect to be. It was advice given to the party about whom the complaint to AFCA had been made.

67    To succeed on this ground, Ms Lingard must establish that a fair-minded lay observer might reasonably apprehend that AFCA might not have brought an impartial mind to the decision-making process it was required to undertake. What is meant by an “impartial mind” was described by Deane J in Webb, at 74, as avoiding an apprehension of “prejudice, partiality or prejudgment”.

68    Ms Lingard raised the speculative proposition that what might lead AFCA to makes its decision other than on its merits is the fact that Ms Purcell is an AFCA Panel Member. Her contention was that Ms Purcell’s general affiliation with AFCA meant it was impossible for the AFCA Decision to be independent or impartial.

69    No evidence was adduced as to how many legal practitioners sit on the AFCA Panel Australia-wide, nor as to whether panel members were known to one another. Further, there is not a scintilla of evidence that Ms Purcell was in any way involved in the AFCA Recommendation, or the AFCA Decision.

70    Ms Lingard was unable to articulate any logical connection between Ms Purcell’s position as an AFCA Panel Member, and her role as an independent legal practitioner who gave confidential and legally privileged advice to the subject of the complaint to AFCA, which might be said to lead AFCA to decide the case other than on its merits.

71    No bias, actual or apprehended, on the part of AFCA has been established.

DISPOSITION

72    For these reasons, Ms Lingard’s appeal must be dismissed, and the AFCA Decision will be affirmed.

73    Ms Lingard’s application for an order to produce the 2021 Mercer Advice, within the Second Amended Notice of Appeal, is misconceived. On 23 October 2023, I ordered the First Respondent to produce to the Registry a sealed copy of that advice, and for the parties to file and serve submissions in relation to whether the advice was protected by legal professional privilege. For reasons that are not apparent, the matter did not progress. Nonetheless, it is clear that the advice is the subject of legal professional privilege and that, in any event, it is of no relevance to the AFCA Decision for the same reasons that pertain to the 2020 Mercer Advice. It was not advice given to AFCA and there is no evidence that AFCA was privy to it.

COSTS

74    Each of the respondents have either sought, or sought to be heard on, costs in respect of this appeal.

75    The parties are to provide to any written submissions they wish to make on the question of costs, not to exceed three pages in length, within 14 days of the date of this judgment.

Associate:    

Dated:        4 March 2024