Federal Court of Australia

Edwards v Retail Employees Superannuation Pty Ltd a trustee of the Retail Employees Superannuation Trust [2024] FCA 1091

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The order in paragraph 1 of the orders made on 27 June 2023 is to remain in force until 17 October 2024.

3.    Any application for costs is to be made on or before 26 September 2024 and in the absence of any such application the parties are to bear their own costs.

4.    Any application for costs may be made by email to the chambers of the presiding judge at Associate.CharlesworthJ@fedcourt.gov.au.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    This appeal concerns a death benefit payable under a superannuation policy administered by the first respondent, Retail Employees Superannuation Trust (REST).

2    The benefit was payable on the death of Ms Jessie Murphy. Ms Murphy died in childbirth on 21 April 2021, aged 33 years. She died intestate. Her child was stillborn.

3    The trustee of REST originally determined that Ms Murphy was the spouse of the appellant, Mr John Edwards, and that 100% of the $396,750.77 benefit should therefore be paid to him. It later changed that decision, rejected Mr Edwards’ claim to have been Ms Murphy’s spouse at the time of her death, and to otherwise have been in an interdependency relationship with her. The trustee determined that the benefit should be paid to the third and fourth respondents (Ms Murphy’s parents) in equal portions.

4    Mr Edwards lodged a complaint from the trustee’s decision with the Australian Financial Complaints Authority (AFCA). A critical issue before AFCA was whether Mr Edwards was a “dependent” of Ms Murphy within the meaning of s 10 and s 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) by virtue of him being her “spouse” for the purposes of s 10, or a person with whom she had an interdependency relationship within the meaning of s 10A. AFCA found against Mr Edwards in each respect and affirmed the trustee’s decision to pay the benefit to Ms Murphy’s parents.

5    An appeal lies to this Court from a decision of AFCA on a question of law. Mr Edwards asserts 12 errors giving rise to five questions of law. For the reasons that follow, none of the alleged errors is established and the appeal will be dismissed.

Legislation and trust deed

6    The trustee of a superannuation fund must pay a death benefit in accordance with its trust deed and the SIS Act. Under the SIS Act, a benefit payable on the death of a member may only be paid to the member’s dependents and the member’s personal legal representative. There was no personal legal representative in Ms Murphy’s case.

7    A trustee may pay a death benefit to someone who is not a dependent if the trustee has been unable to find a dependant after making reasonable enquiries:  Superannuation Industry (Supervision) Regulations 1994 (Cth), reg 6.22.

8    The trust deed in the present case permits a member to nominate any one or more of their dependants or personal legal representatives to receive any part (or all) of the benefit on their death. A nomination can be binding or non-binding.

9    The trust deed defined “dependant” in the same way as appears in s 10(1) of the SIS Act, as follows:

dependent, in relation to a person, includes the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship

10    Spouse is defined in s 10 of the SIS Act:

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 in a relationship as a couple.

11    It is not disputed that in determining whether a person lives with another in a genuine domestic basis in a relationship as a couple, it is appropriate to have regard to the indicia of a spouse relationship at common law. As summarised in Roy v Sturgeon (1986) 11 NSWLR 454, they are as follows:

(1)    the duration of the relationship;

(2)    the nature and extent of a common residence;

(3)    whether or not a sexual relationship exists;

(4)    the degree of financial dependence or interdependence;

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

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

(7)    the care and support of children; and

(8)    the reputation and public aspects of the relationship.

12    Section 10A of the SIS Act defines the phrase “interdependency relationship” in terms discussed later in these reasons.

AFCA’S functions and powers

13    AFCA is an external dispute resolution body responsible for administering a single external dispute resolution scheme for financial services. Its functions and powers with respect to superannuation complaints (including in relation to death benefits) are conferred and confined by Div 3 of Pt 7.10A of the Corporations Act 2001 (Cth) and are broadly consistent with those formerly vested in the former Superannuation Complaints Tribunal (SCT).

14    In making a determination in relation to a superannuation complaint, AFCA has “all the powers, obligations and discretions that are conferred on the trustee” who made the decision to which the complaint relates:  Corporations Act, s 1055(1). It must affirm the decision complained of if it is satisfied that the decision was fair and reasonable in all of the circumstances in its operation in relation to the complainant or any other person joined as a party to the complaint:  Corporations Act, s 1055(3). It may exercise its powers to grant relief only for the purposes of placing the complainant (or any other person joined as a party) as nearly as practicable, in such a position that the unfairness, unreasonableness, or both, no longer exists:  Corporations Act, s 1055(5).

15    AFCA has procedural powers, including the power in s 1054A. It provides:

1054A    Power to obtain information and documents

(1)    If AFCA has reason to believe that a person is capable of giving information or producing documents relevant to a superannuation complaint, AFCA may, by written notice to the person, require the person:

(a)    to give to AFCA, by writing, any such information; or

(b)    to produce to AFCA such documents or copies of such documents as are stated in the notice;

at such place, and within such period or on such date and at such time, as are stated in the notice.

(2)    If documents (whether originals or copies) are so produced, AFCA:

(a)    may take possession of, and may make copies of, or take extracts from, the documents; and

(b)    may keep the documents for as long as is necessary for the purpose of dealing with the complaint; and

(c)    must, while keeping the documents, permit a person who would be entitled to inspect any one or more of them (if the documents were not in the possession of AFCA) to inspect at all reasonable times such of the documents as that person would be so entitled to inspect.

(3)    A person must not fail to comply with a requirement made by AFCA under subsection (1).

(4)    Subsection (3) is an offence of strict liability.

(5)    Subsection (3) does not apply to the extent that the person has a reasonable excuse.

16    AFCA also has procedural powers under its Complaint Resolution Scheme Rules. They include rule A.9.7, which authorises it to seek expert advice from a medical practitioner and to charge the cost of that advice (up to a maximum of $5000.00) to a trustee.

AFCA’s decision

17    AFCA found that nearly two years before her death, Ms Murphy had made a non-binding nomination of beneficiaries, requesting that her death benefits be paid in equal shares to Mr Edwards and to her father.

18    It went on to refer to the definitions of the words “dependent” and “spouse” in the trust deed and the SIS Act. After summarising the statutory definition of “spouse”, it listed the common law indicia as summarised in Roy v Sturgeon.

19    AFCA concluded that Ms Murphy and Mr Edwards had commenced a relationship in 2018. On the basis of statutory declarations provided by Ms Murphy’s parents, it concluded that the relationship had ended on several occasions, culminating in Ms Murphy permanently ending the relationship in February 2021. It described the relationship as tempestuous.

20    AFCA found that Mr Edwards and Ms Murphy did not own a dwelling but had lived together in rental accommodation from early in their relationship. It referred to evidence in the form of text messages and emails showing that from February 2021 they lived in the same rental accommodation because Ms Murphy had wanted her unborn daughter to have both a mother and father present for the first few months of her life and because neither she nor Mr Edwards could afford to rent accommodation separately. AFCA found that until Ms Murphy’s death, they lived together in rental accommodation, sharing expenses.

21    AFCA referred to a submission made by Mr Edwards to the effect that the couple had entered into a lease agreement on 9 April 2021 for a new rental home residence. However, it concluded that Ms Murphy had declared to Centrelink on 3 April 2021 that the rent payments were shared between them. It said that messages between Ms Murphy and Mr Edwards showed that all costs of cohabitation were shared, that Ms Murphy was strongly of the view that Mr Edwards had not paid his share and that she considered money she had outlaid to pay expenses on his behalf was in the nature of a loan. AFCA concluded that the arrangement should be interpreted as a “cost sharing situation”.

22    AFCA went on to conclude that from early March 2021, Ms Murphy had acted in a manner that demonstrated the relationship had ended, namely that:

(1)    on 6 March 2021, Ms Murphy withdrew the balance of money standing in their joint bank account and closed it together with another shared account;

(2)    finalised Centrelink separation forms on 26 March 2021 and lodged them about a week later, including a form stating that she and Mr Edwards were separated under the one roof; and

(3)    from 7 March 2021 until the day she went into labour, Ms Murphy informed family members and friends that the relationship was over.

23    AFCA went on to say that the Centrelink forms lodged by Ms Murphy portrayed a situation in which she and Mr Edwards were living “together on a cost-sharing basis, with such arrangement intended to be continued until the deceased’s baby was six to nine months old and the deceased could seek employment” and that they were therefore not “‘living together’ in the relevant sense”.

24    AFCA said it had received no evidence that there was any financial dependence between Ms Murphy and Mr Edwards. It repeated that Ms Murphy had considered payments made on Mr Edwards behalf as loans. It said that did not constitute financial support.

25    AFCA referred to an email exchange between Ms Murphy and Mr Edwards on 15 April 2021 in which Ms Murphy had said:

Just writing to confirm that today you agreed to let me off the lease as we are separated

26    To which Mr Edwards responded:

Yes, that is correct

27    AFCA noted that in a statutory declaration Mr Edwards had denied sending that response and that he could “only assume that [Ms Murphy] sent it from my phone”. It observed that Mr Edwards had offered no evidence to support that assertion. Implicitly it rejected Mr Edwards’ assertion on that topic and proceeded on the factual basis that he had responded to Ms Murphy in terms that confirmed that they had separated and that he was single.

28    AFCA repeated that there was no evidence of a commitment to a shared life, but rather there was evidence that Ms Murphy had terminated the relationship. It said that the Centrelink documents included a form signed by Ms Murphy for the purpose of disclosing that she and Mr Edwards were separated under one roof and that in another form she had provided details of the separation. In the latter form she had provided the names of two long-term friends who could attest to the separation.

29    AFCA referred again to emails and text messages that it said made it clear that the relationship had been terminated by Ms Murphy, one of which read:

I submitted the separation yesterday

I’m sorry but there is too many problems no trust and no evolving. I want more from my life. I also don’t have any status with your kids anymore. I don’t want to be around [Mr Edwards’ daughter] nor does my family, I don’t have anything to do with your family and they have been [redacted] to me and [unborn baby]. There is just no repair. You have damaged my friendships and you and your smoking is just never changing. I am done with it. Seeing you on your [redacted] phone with two kids in the car in casual clothes did it for me.

30    AFCA repeated that the messages also dealt with practical matters needing attention at the end of the relationship including the separation of financial affairs, the ending of a lease and the closure of bank accounts.

31    On the basis of that material it concluded that there was no longer a mutual commitment to a shared life at the time of Ms Murphy’s death.

32    AFCA referred to evidence provided by Mr Edwards that indicated that there was an ongoing relationship, including social media posts showing the couple together for a baby shower in February 2021 and statements of a number of people known to Mr Edwards, including his mother. It observed that it had before it conflicting evidence and that whilst there was no dispute that Ms Murphy and Mr Edwards had previously lived together as a couple, Mr Edwards and Ms Murphy’s parents were in dispute as to whether that relationship had ended shortly before Ms Murphy’s death.

33    As to the evidence submitted by Mr Edwards, AFCA said:

The complainant’s representative says the deceased’s messages about separation should be disregarded as unreliable. See section 3.7 of this determination.

Copies of messages and emails provided to AFCA demonstrate that the relationship between the deceased and the complainant was volatile. The deceased would on occasion send messages saying the relationship was ended and then recant shortly thereafter.

However, in the period immediately prior to her death, the deceased’s communications consistently dealt with the ending of the relationship. There were messages of an emotional nature, expressing the deceased’s anger and disappointment about the complainant’s behaviour, as well as practical issues dealing with the separation of their finances and living arrangements. It is also apparent from these communications that the deceased intended to remain in shared accommodation with the complainant only for a few months following the birth of her child.

On balance, having considered all the information provided to AFCA, I am satisfied the complainant was not in a spousal relationship with the deceased at the time of her death.

(emphasis added)

34    AFCA went on to consider whether the relationship was an “interdependency relationship” within the meaning of s 10A of the SIS Act. It identified that most of the factors relevant to that analysis had already been considered. In respect of the remaining factors, it said that the evidence provided to it demonstrated “an embittered and hostile relationship”, that the relationship was “one of convenience”, that it was a “cost-sharing living arrangement and impermanent”.

35    Accordingly, it concluded, Mr Edwards was not Ms Murphy’s dependant for the purposes of the SIS Act or the trust deed. In addition, it concluded that the trustee’s decision to pay 100% of the death benefit to Ms Murphy’s parents was fair and reasonable. It said that the trustee was not bound to pay the benefit in accordance with a non-binding nomination Ms Murphy had made two years prior.

36    AFCA said that there were multiple possible outcomes for the distribution of the benefit, however its role was confined to determining whether the trustee’s decision was fair and reasonable. It said:

Where the trustee has a discretion, a range of decisions may be fair and reasonable, and AFCA must affirm the trustee’s decision if it is within this range.

Conclusions on “credibility”

37    In a separate section of its reasons, AFCA dealt with contentions advanced by Mr Edwards concerning the reliability of Ms Murphy’s statements and actions in the period before her death. It there identified written materials upon which Mr Edwards had relied and extracted portions of the submissions which summarised his position.

38    The broad effect of the submissions was that it was not appropriate to rely on documents prepared or statements made by Ms Murphy because she had been diagnosed with borderline personality disorder (BPD) and that whilst Ms Murphy had the capacity to make her own decisions, she had created an “aura” or impression that she was going to leave “when the statements creating that idea were plainly lies and fantasies”. It was submitted that the dispute was about a wider issue, namely Ms Murphy’s “personality and the impact of BPD on her communications”. AFCA noted that Mr Edwards’ legal representative had also described Ms Murphy as “a liar and a fantasist”. The submission was that the documents, statements and messages provided to AFCA by Ms Murphy’s parents were unreliable, that they lacked credibility, and that they were “really an attempt [by Ms Murphy] to bolster her own ego and self-awareness because of her condition”, and that Ms Murphy’s actions in “renting the property jointly and controlling [Mr Edwards’] life and financial affairs show that she had no genuine intention to separate”. It was submitted that the statutory declarations of Ms Murphy’s parents were of no evidentiary value and should be disregarded, including because they contained only a reiteration of Ms Murphy’s statements which were false and unreliable.

39    AFCA said that it had carefully considered all of the information including the documents, statements and statutory declarations provided by the parties. It said that Ms Murphy’s mental health “may be a significant factor”, however Mr Edwards had not provided any professional reports about her decision making capacity or the possibility that it may have been affected by her condition. It said that generic reports about BPD may be informative, but they had no bearing on the complaint because they did not relate specifically to Ms Murphy’s circumstances. It said that opinions about Ms Murphy’s statements and correspondence were not the opinion of a professionally qualified person familiar with Ms Murphy’s mental health at the time that she made the decisions or wrote the correspondence in question, and that no health professionals had substantiated those views. Accordingly, AFCA was not satisfied that the fact of the BPD diagnosis meant that communications Ms Murphy had made to Mr Edwards and others about their relationship should be disregarded.

Alleged errors of law

40    As will by now be apparent, it is not in dispute that Ms Murphy and Mr Edwards had previously been in a relationship as a couple and that their relationship commenced some time in 2018. The issue before AFCA was whether they continued to be in that relationship at the time of Ms Murphy’s death on 21 April 2021. That is a question of fact. An appeal to this Court under s 1057 of the Corporations Act is confined to questions of law.

41    Mr Edwards contends that AFCA’s fact finding process and its characterisation of the relationship was affected by multiple legal errors. It is convenient to group and dispose of the grounds of appeal under four of the asserted legal questions (the fifth being merely summative). Those questions broadly ask whether AFCA erred in law by:

(1)    failing to recognise that the preconditions existed for the exercise of its discretion to obtain documents and information under s 1054A of the Corporations Act, and failing to exercise that discretion in accordance with a request Mr Edwards had made to it;

(2)    misapplying the definition of a “spouse”, specifically by failing to consider the evidence in the context of patterns of behaviour within the ongoing relationship as a whole;

(3)    failing to correctly apply the definition of an interdependency relationship, including by failing to consider evidence of the relationship as a whole; and

(4)    failing to provide adequate written reasons in compliance with its statutory obligation to do so, including by failing to explain why Mr Edwards’ evidence and contentions had been rejected.

42    My rejection of the multiple grounds of appeal is subsumed in my consideration of those broader questions.

Question 1

43    Mr Edwards submits that in his correspondence with AFCA, he twice requested AFCA to exercise the power in s 1054A of the Corporation Act (extracted at [15] above) and that each request was refused.

44    It is necessary to consider the terms in which that correspondence was expressed. The first request was made by way of written submission dated 8 November 2022. It was expressed as follows:

J.    Steps Requested of AFCA

Production of Documents

127.    Paul and Joanne Murphy have possession of Jessie’s phone with messages and/or Facebook entries. Paul and Joanne Murphy collected all of Jessie’s paperwork from James’ house shortly after her death. See James’ Statutory Declaration of 20 September 2022 at paragraphs 156 – 158.

128.    These papers included her medical records. James has produced the few medical records which remain. Paul and Joanne Murphy have produced a ‘selective’ list of entries from Jessie’s phone. See paragraph 168 of James’ Statutory Declaration.

129.    It should be noted at the bottom right hand corner of the messages produced from Jessie’s phone, the total number of pages downloaded and printed is shown but only some numbered pages are produced. The parents have obviously selected the pages which they want to produce without addressing the complete picture. Whilst this issue is not governed by the usual court rules of discovery as in other litigation where a party has to produce all records whether favourable or otherwise, the parents should be required to produce to AFCA and to James all documents of downloads from Jessie’s phone or other devises which they hold and all medical and other records which they took from James’ house or otherwise have relating to Jessie.

130.    AFCA has power under the Corporations Act S 1054A(1) and Rule A.9.4 to require persons capable of providing information or producing documents to produce those documents.

131.    To get a complete and not a selective picture of the relationship, AFCA should issue a notice requiring Paul and Joanne Murphy to produce:

(a)    a copy of the whole of the phone and other downloads; and

(b)    a copy of all medical and other records relating to Jessie collected from 18 Nella Dan Court following her death and all other documents of Jessie relevant to issues in this complaint.

Medical Information

132.    Under Rule A.9.7 AFCA may seek expert advice from a medical practitioner.

133.    The Operational Guidelines refer to examples where AFCA may be assisted by expert advice including a medical specialist.

134.    In this matter I have provided extracts of materials concerning Borderline Personality Disorder. James’ case is that because of this mental condition Jessie acted impulsively and erratically and was extremely volatile. His case is that she had paranoia and told lies.

135.    He says that the text messages or Facebook posts reflect this condition and do not represent the true nature of their relationship. He is not in a financial position to obtain a report from a medical practitioner who specialises in this condition to provide an opinion of whether, based on the facts surrounding Jessie’s conduct, the messages produced are truly evidence of the ending of the relationship or should not be relied upon as evidence of the true situation.

136.    Obviously the specialist would have to be provided with a great deal of information concerning Jessie’s conduct, life and messages on which the specialist could venture an opinion. (This is similar to advice sought in wills cases on whether a deceased had testamentary capacity when making a particular will).

45    It may be observed that Mr Edwards’ request for “Medical Information” was not a request that AFCA exercise the power under s 1054A of the Corporations Act but was rather a request that it obtain the opinion of a medical expert under rule A.9.7.

46    On 2 December 2022 AFCA responded in the following terms:

1.    Your request under Corporations Act S 1054A(1) and Rule A.9.4.

We decline this request because it is up to each party to a complaint to support their own position(s) with information and documents. AFCA provides a dispute resolution service that is independent and impartial. We cannot advocate for any party to a complaint.

AFCA would only use its statutory powers under section 1054A of the Corporations Act 2001 (Cth) and Rule A.9.4 to compel a party to produce information in a specific capacity and in limited circumstances. For example, we may exercise these powers to obtain a specific document or piece of information that we have identified is critical to our investigation or determination of a complaint.

It is not appropriate for AFCA to exercise these powers to assist a party to establish their position by seeking information or documents such as social media or text messages or medical history, simply because the party believes they may discover content that would support that position.

AFCA does not have reason to believe that Mr and Mrs Murphy are capable of giving information or producing documents relevant to this complaint, beyond what they have already provided. We are unable to exercise our power under section 1054A unless we have reason for such belief.

Mr Edwards can provide medical evidence about the deceased member that he has obtained. Mr Edwards can also provide his own messages and sms’ with the deceased member along with any other correspondence or documents in support of his position, where possible.

I note Mr Edwards has already provided various submissions and documents in support to the trustee and AFCA including messages, statutory declarations and medical documents.

2.    Your request under Rule A.9.7.

We decline this request because AFCA will only act under A.9.7 in very limited and specific circumstances where we are unable to reach a decision based on what is fair and reasonable in the circumstances. For example, we might arrange for a medical specialist to review specific and conflicting medical information.

Here, the medical information is not conflicting. Based on the medical information provided, it is not in dispute the deceased member had previously been diagnosed with borderline personality disorder. Also, Mr Edward’s position about the deceased member’s medical condition and mental state is one of multiple arguments raised. AFCA will take into account this and the other information provided by the parties when making a recommendation and, in due course, in making a determination if the complaint proceeds to an ombudsman. AFCA does not consider a report from a specialist medical practitioner, along the lines suggested by Mr Edwards, is required in order for us to undertake this task.

It is open to Mr Edwards to arrange an expert medical opinion to support his position to submit to us, which we would consider along with the other submissions that have been made.

…

47    The request relating to documents held by Ms Murphy’s parents was later repeated and again refused by AFCA in substantively the same terms.

48    Mr Edwards contends that AFCA was “under a statutory duty to consider, but failed to consider, and for the purpose of considering, failed to make any, or any proper inquiry into, whether, there was ‘reason to believe’ that certain identifiable persons … were capable of giving information or producing documents relevant to the complaint” within the meaning of s 1054A. As a result, Mr Edwards contends, AFCA failed to conclude, but should have concluded, that there was reason to believe that the conditions for the exercise of the power were satisfied: ie, that AFCA should have concluded that there was “reason to believe” that certain identified persons were capable of giving information or producing documents relevant to the complaint. He then alleges that in the circumstances of the present case, the only lawful exercise of AFCA’s discretion under s 1054A was to require:

(1)    Ms Murphy’s parents to produce documents including Ms Murphy’s phone data and medical records in their possession, or to disclose their whereabouts, including documents evidencing the history of Ms Murphy’s BPD diagnosis “over the course of her lifetime” and its consequences on the pattern of her personal relationships;

(2)    certain medical institutions to produce documents concerning the treatment of Ms Murphy’s BPD over the course of her lifetime; and

(3)    treating psychologists and doctors (including pregnancy doctors) to produce documents relating to Ms Murphy’s BPD “including but not limited to the effects of her pregnancy on that condition” and to inform AFCA of their observations about such things.

49    In addition, Mr Edwards submits that AFCA should have:

Required a nominated and appointed expert to provide ACFA with an expert repost expressing their opinion (based on the documents and other information provided to ACFA) as to whether, having regard to the deceased’s condition as revealed by the documents and information (or that condition present in a person of the deceased’s age, gender and background), and the history of the deceased’s relationship with the complainant, including the imminent birth of her child, her conduct in the period of two months immediately before her death in childbirth was consistent with their still living together as a couple on a genuine domestic basis in a relationship that had not been terminated indefinitely.

50    It is necessary to consider the two aspects of Mr Edwards’ requests separately.

51    The statutory context is one in which AFCA had a statutory obligation to give written reasons for the determination of the complaint, but that did not equate to an obligation to give written reasons for the exercise or refusal to exercise its procedural powers. A brief response was nonetheless given to Mr Edwards’ request. It is to be interpreted in its proper context, namely as correspondence responding to the specific requests Mr Edwards had made relating to discrete powers. In addition, as Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272), the reasons of an administrative decision-maker must be considered as a whole, and without any eye too keenly attuned to the perception of error. Their Honours emphasised:

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

(footnote omitted)

Documents possessed by Ms Murphy’s parents

52    Where (as here) a power is conditioned by the words “reason to believe” the condition is satisfied by the existence of objective facts, sufficient to induce a belief in the mind of a reasonable person:  Collins v Northern Territory (2007) 161 FCR 549, French J (at [65]); George v Rockett (1990) 170 CLR 104 (at [8]).

53    Mr Edwards submits that AFCA erroneously concluded that there was no reason to believe that Ms Murphy’s parents were capable of producing documents relevant to the complaint, which in turn resulted in a failure to consider the exercise of the power. He further submits that on the material before AFCA it was bound to conclude that Ms Murphy’s parents were capable of producing relevant documents and further that there was no basis upon which it could validly decline to exercise the power so as to require their production.

54    I accept that AFCA proceeded from the premise that there was no reason to believe that Ms Murphy’s parents were capable of producing relevant documents beyond the material that had already been provided to it. That conclusion implicitly involved a rejection of the propositions that Mr Edwards had put forward in support of this aspect of his request. His contention to AFCA (and on this appeal) was that Ms Murphy’s parents had “obviously” selected pages from a downloaded bundle that they wanted to produce, without providing all of the records in their possession in order to “address the complete picture”. Mr Edwards submitted that AFCA erroneously denied itself the means of assessing the true nature and extent of Ms Murphy’s behaviour “as a manifestation of her medical condition” that was part of, rather than terminal of, their relationship. He submitted that documents from Ms Murphy’s electronic files “would show the totality of the relationship between them, and the obvious falsity of the stories speaking to her paranoia”. He further submitted that without all of the documents available to it, AFCA was unable to properly fulfil is statutory role to make a proper assessment of the whole of the evidence and to make its own findings. His submissions went so far as to allege that Mr and Mrs Murphy had deliberately deceived AFCA by withholding evidence from it.

55    Assuming for present purposes that a question of law arises, I do not accept Mr Edwards’ submission that AFCA was bound to conclude that Ms Murphy’s parents were capable of producing documents that were relevant to the complaint. AFCA already had before it a large amount of material produced by both of the parties. Mr Edwards’ submissions amount to mere supposition that further relevant documents were in existence and that they had been deliberately withheld. He relied heavily on the circumstance that the bundle of materials provided by Ms Murphy’s parents had missing page numbers, but could point to no evidence to support the contention that the missing pages contained information that could have assisted AFCA in the discharge of its function. His assertion that there are “missing” documents that are “relevant” amounts to unsubstantiated speculation.

56    By way of illustration, in oral submissions Counsel for Mr Edwards contended that the “missing pages of the download” would either contain nothing at all that could assist AFCA, or they would contain relevant material evidencing a desire on Ms Murphy’s part for the relationship to continue. In other words, the missing material was “capable” of containing either species of information. To my mind, that only goes to reinforce the correctness of AFCA’s conclusion that there was no reason to believe that Ms Murphy’s parents were capable of producing information relevant to the complaint.

57    Mr Edwards has a very wide view as to what is “relevant”. In part, his contention was that it was necessary for AFCA to have before it every document relating to Ms Murphy before it could properly discharge its function. That is not correct.

58    As I already identified, AFCA had been provided with a significant amount of material, all of which is now before me together with many pages of submissions. Mr Edwards had every opportunity to put before AFCA all of the communications between him and Ms Murphy that he asserted were relevant, and he in fact did so. In addition, he adduced statements from several outsiders to the relationship about (among other things) Ms Murphy’s communications with them. To succeed on this aspect of the appeal it is necessary for Mr Edwards to provide some evidentiary or logical basis for a finding that there was the requisite “reason to believe” for the purposes of s 1054A. He cannot discharge that burden by saying that the content of the “missing” pages was unknown.

59    In oral submissions, Counsel for Mr Edwards acknowledged that the “missing” documents may include medical records (including gynaecological records) relating to Ms Murphy’s pregnancy. I do not accept that all medical records “relating to” Ms Murphy were relevant to the complaint. It cannot be said that records of a gynaecological nature relating to the progress of Ms Murphy’s pregnancy could have rationally assisted AFCA in the discharge of its functions. Submissions asserting the relevance of documents relating to Ms Murphy’s gynaecological and prenatal care were most unpersuasive. They underpinned the speculative nature of Mr Edwards’ allegation about “missing” documents.

60    To be clear, there is no evidence before this Court that Mr and Mrs Murphy withheld from AFCA evidence that was material to the discharge of its functions, whether knowingly or otherwise.

Medical information

61    As identified above, AFCA responded to this aspect of the request on the correct assumption that it had been asked to consider its discretion to obtain the assistance of a medical expert under rule A.9.7. As such, it is not surprising that its response to the request did not expressly refer to the preconditions to the exercise of the power in s 1054A of the Corporations Act. The gist AFCA’s response was that it was open to Mr Edwards to obtain a medical report of the kind that he described. AFCA may also be understood to have considered the proposed medical opinion to be of insufficient assistance to justify the exercise of its power to obtain it or to justify the cost being imposed on the trustee. As stated in its response, that was principally because it considered that the existence of Ms Murphy’s BPD diagnosis was not a question that was in dispute, and it was a matter about which Mr Edwards could make submissions and adduce evidence. Read fairly, the response evidences three things:  a recognition that the discretion to accede to the request existed, consideration of its exercise and a decision not to exercise the discretion to obtain the opinion. Critical to that outcome was AFCA’s view that it was open to Mr Edwards to obtain whatever report he could to substantiate his claims that Ms Murphy was a fantasist, a liar or an egoist as the case may be, or any other basis for claiming that her words and actions in the period before her death could not be taken at face value.

62    AFCA implicitly rejected Mr Edwards’ assertion that he could not personally afford the cost. I accept that the reasons do not elaborate on that rejection. However, on the material before me, it has not been shown that Mr Edwards provided AFCA with any evidence to substantiate his claim to be impecunious. More critically, if AFCA erred in assuming that Mr Edwards could obtain such a report from his own resources, that is not an error of law.

63    More fundamentally, it has not been demonstrated that the report Mr Edwards sought to have obtained would have assisted AFCA in the discharge of its statutory function. On this appeal Mr Edwards did not go so far as to say that BPD affected a person’s capacity to make a decision at all. AFCA was not concerned with the question of whether Ms Murphy’s decision to end the relationship was a rational, wise or correct one, or one based on an objectively correct view of the facts.

64    In any event, on this appeal it has not been demonstrated that a medical professional could have opined about whether Ms Murphy’s statements that the relationship was over were or were not a true statement of her state of mind at the time that they were made. There was a factual finding that the statements were consistent and persisted with to the time of her death and, as AFCA found, the statements were accompanied by actions she had taken to separate her financial affairs from those of Mr Edwards. The assertion that a medical expert could opine upon which of Ms Murphy’s statements were true and which were “lies” or explained by “paranoia” was not demonstrated on the material before AFCA.

65    Mr Edwards further submitted that there was a continuing and ambulatory obligation on AFCA to consider the exercise of the discretion under s 1054A that was not dependent upon a request made by a party. Assuming that to be so, AFCA is not obliged to give written reasons to the parties to a complaint on each occasion that it turns its mind to the operation of the provision. The absence of written reasons specifically referring to the provision cannot support an inference that no consideration at all was given to its exercise. Given its response to the request relating to rule A.9.7, AFCA may be understood to have proceeded on the basis that whatever assistance the medical expert could provide, it did not justify the exercise of its own compulsive powers. No error of law is demonstrated.

Duty to inquire

66    Counsel for Mr and Mrs Murphy emphasised that AFCA was under no positive duty to conduct an inquiry by positively obtaining evidence that may be relevant. The context was said to be analogous to review procedures under the Migration Act 1958 (Cth), specifically a power vested in a decision-maker under s 424 to “get any information that it considers relevant”.

67    The Full Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) said in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 (at [25]):

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error …

(footnote omitted)

68    See also Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, French CJ and Kiefel J (at [22]); Kristoffersen v Superannuation Complaints Tribunal [2013] FCA 951; Kristoffersen v Superannuation Complaints Tribunal [2014] FCAFC 63.

69    From that premise, Counsel for Mr and Mrs Murphy submitted that the documents and information sought in the present case did not relate to a critical and easily ascertainable fact, and that there was no “obvious inquiry” of the kind discussed in the authorities.

70    The decisions in SZIAI and SZGUR and other migration cases do not answer the more nuanced questions raised by Mr Edwards on this appeal. Mr Edwards made express requests to AFCA for the exercise of discrete powers, and AFCA in fact considered their exercise for the purposes he asserted. Whether AFCA was otherwise under a “general duty” to positively make enquiries of the kind forming the subject of Mr Edwards’ requests is unnecessary decide. Mr Edwards himself did not articulate an error of law in terms asserting a general duty of inquiry other than to describe s 1054A of the Corporations Act as “ambulatory” in its nature. His principal submission was that AFCA was obliged to correctly identify whether the preconditions to the exercise of the power in s 1054A of the Corporations Act existed and that, on the facts, there was only one way in which the discretion could then be exercised. Whether AFCA erred in the manner alleged does not turn on questions about a “general duty to inquire” discussed in the migration cases.

Jurisdictional challenge

71    Both REST and AFCA appeared as respondents on the appeal.

72    REST emphasised that an appeal under s 1057 of the Corporations Act is an appeal on a question of law “from AFCA’s determination of the complaint”. It submitted that the refusals by AFCA to exercise the power under s 1054A were each decisions that were properly characterised as “anterior” to the determination of the complaint, that they form no part of the determination itself and that they therefore cannot form any part of an appeal under s 1057.

73    I do not accept that submission. It was open to Mr Edwards to allege that the determination of the complaint was affected by an error of law made in the exercise of AFCA’s evidence-gathering powers, and in doing so to argue that such an error had a bearing on the ultimate outcome: cf Director-General of Social Services v Chaney (1980) 47 FLR 80, Deane J (at 103 – 104).

Questions 2 and 4

74    Mr Edwards contends that AFCA erred in applying the definition of “spouse” by failing to consider the whole of the relationship. More specifically, he contends that AFCA compartmentalised its reasoning in accordance with each of the common law indicia without enquiring into the nature of the relationship as a whole, including the several prior occasions on which Ms Murphy had ended the relationship. He submits that AFCA “did not examine whether the comments by [Ms Murphy] about intending to separate were genuine or were just a manifestation of her condition as part of the ongoing relationship, and never persisted with”. He submits that AFCA erred by considering the statements and conduct of Ms Murphy in the short period before her death in isolation from their wider historical context.

75    Submissions on this topic largely ignore the findings that AFCA made about the nature of the relationship over its course. AFCA did not fail to have regard to the circumstance that Ms Murphy had previously ended then recommenced the relationship. It expressly found that Ms Murphy had also recanted previous statements that the relationship was at an end. It expressly acknowledged that Ms Murphy’s mental illness may be a significant factor, implicitly acknowledging that it may have explained her erratic behaviour. However, it also found that the relationship itself was embittered and hostile. And most critically, it characterised the steps taken by Ms Murphy in the weeks leading up to her death as “consistently” evincing a state of mind that the relationship was over. It found that the cohabitation continued as a relationship of convenience (including to have Mr Edwards present for the first few months of their child’s life), and hence it cannot assist Mr Edwards to point to the circumstance that they continued to live together. It placed significant weight on the circumstances that the couple’s finances were no longer merged and in that period Ms Murphy was asserting that Mr Edwards was indebted to her because he had not paid his share of the household expenses. It did not accept that Ms Murphy’s BPD was such as to affect her capacity to make a decision. Nor did it accept Mr Edwards’ unsubstantiated assertion that Ms Murphy had used his phone to send an email to her, confirming as “correct” her statement that the relationship was over.

76    In my view, Mr Edwards’ submissions on this topic amount to a complaint that his arguments about how Ms Murphy’s conduct should be interpreted were rejected. They do not disclose an error of law of the kind alleged. Whilst AFCA addressed the indicia of a spousal relationship under various headings, that does not of itself support an inference that it failed to consider the relationship as a whole. AFCA was well aware that it had evidence before it that pointed in different directions, describing the evidence as “conflicting” as well as referring to Ms Murphy’s on-again, off-again behaviour. A critical question before it was whether the relationship was characterised by permanency. It resolved that and other issues by affording weight to what it considered to be the consistent nature of Ms Murphy’s words and actions in the critical period up to and including the date of her death.

77    Mr Edwards further alleges that AFCA ignored evidence that supported a finding that Ms Murphy was not genuine in her statements the relationship was over (including evidence that she continued to speak of him and treat him with affection) as well as the large body of evidence he had put forward to support his case. That material has been provided to me together with aids in the form of a chronology and schedules relating to various topics.

78    The allegation that AFCA ignored contrary evidence (and so failed to evaluate the relationship as a whole) overlaps with the allegation that AFCA failed to provide adequate reasons, to which I now turn.

79    Section 1055A of the Corporations Act provides that AFCA must give written reasons for its determination of a superannuation complaint. Section 25D of the Acts Interpretation Act 1901 (Cth) required that the instrument containing AFCA’s reasons “shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”.

80    It may be accepted that a substantial failure to comply with the requirements of s 25D of the Acts Interpretation Act may amount to an error of law:  Dornan v Riordan (1990) 24 FCR 564 (at 573); Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner (2023) 297 FCR 39 (at [100]).

81    Mr Edwards submitted that where a significant matter is in dispute, a decision-maker is obliged to state whether relevant evidence bearing on the issue was accepted or rejected and to explain why. The authorities cited in support of that contention in large part arose in a different context of judicial decision making:  see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Hunter v Transport Accident Commission [2005] VSCA 1. In Kermanioun v Comcare (1998) 55 ALD 503, Finn J considered the obligation of the Administrative Appeals Tribunal to give reasons in accordance with its obligation under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (equivalent to the obligation in s 25D of the Acts Interpretation Act). His Honour confirmed the following principles concerning the scope of that obligation (at 504):

(i)    A breach of the obligation is not necessarily shown by pointing to matters which might, with advantage, have been the subject of further or more detailed discussion or to possible issues which have not been mentioned (FCT v Osborne (1990) 26 FCR 63 at 65; 95 ALR 654) the tribunal member, no less than a judge, is not required to deal expressly with ‘every consideration which passes through his mind’:  Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126; 37 ALR 620 at 621;  Mifsud v Campbell (1991) 21 NSWLR 725 at 728; 13 MRV 243

(ii)    The tribunal’s Reasons should expose the logic of its decision and should contain findings on those matters that are essential to that logic (Dodds v Comcare Australia (1993) 31 ALD 690 at 691); where a matter significant to the decision is in issue and material is advanced by a party to support his or her version of it, that party is entitled to know whether it has been accepted or rejected by the tribunal:  ‘[w]ithout this knowledge the parties will have but an incomplete idea of the tribunal’s process of reasoning and a lessened respect for the tribunal’s decision-making process’:  Copperart Pty Ltd v FCT (1993) 30 ALD 377);  see also Kandiah v Minister for Immigration and Multicultural Affairs (Fed C of A, Finn J, VG238 of 1997, 3 September 1998, unreported, BC9804675). In the case of an unsuccessful applicant, it is that ‘incomplete idea’ of why the decision went as it did that differentiates the ‘disturbed’ from the ‘disappointed’ applicant (to adapt the description used in Connell v Auckland City Council [1977] 1 NZLR 630 at 634).

82    Mr Edwards submitted that AFCA’s obligation to give adequate reasons in accordance with those principles included an obligation to expressly grapple with all of his evidentiary material and to explain why it was not accepted.

83    AFCA was under no obligation to include in its reasons a recitation of all of the evidence before it, nor to state in respect of each item what was thought of it and why it was rejected or accepted. The reasons why the case put forward by a complainant has been rejected may be made apparent in other ways. In my view, the reasons provided by AFCA make it plain why it did not accept the case Mr Edwards had advanced. That case was based on at least two related contentions:  first that Ms Murphy’s statements and conduct in the weeks before her death were not a reliable indication of her state of mind; and that her statements and conduct were a continuation of a pattern of conduct characterised by ups and downs (and Mr Edwards’ generous accommodation of those ups and downs), rather than evidence of a lack of permanency.

84    In important respects, submissions on this topic were based on evidence drawn from a written statement of Mr Edwards himself. An example is his assertion that he was not the author of written contemporaneous communications in which he agreed with Ms Murphy that their relationship was over. AFCA was under no obligation to accept that denial at face value. It expressly rejected Mr Edwards’ allegation that Ms Murphy had used his phone to write the messages because it did not consider the evidence to be substantiated. It was plainly open to AFCA to do so. In addition, the aides to the evidence now before me are replete with allegations that Ms Murphy was a “liar”, “paranoid”, and “egoist” and so on. AFCA described descriptions of that kind as the unsubstantiated views of Mr Edwards, his lawyer or others, which adequately explains why it did not accept them. The reasons fairly disclose a reliance and preference on contemporaneous documents in preference over Mr Edwards’ assertions and submissions.

85    I have not overlooked that some of the material upon which Mr Edwards relies indicates that he and Ms Murphy continued to live together and to sleep in the same bed. That does not preclude a finding that their cohabitation was a matter of convenience, given that (as AFCA found) Ms Murphy had made statements to the effect that she wanted their unborn baby to have the presence of a father for the first few months following the birth. On this topic, it cannot assist Mr Edwards to point to words or behaviour indicating that Ms Murphy retained some feelings of affection for him or others associated with him (including his own mother). AFCA did not describe the relationship as so dysfunctional that Ms Murphy refused to have any dealings with Mr Edwards at all. Its finding that the relationship was one of cohabitation for convenience is not contradicted by evidence of some remaining affection or event such as their joint presence at a baby shower.

86    Nor does the fact of the entry into a lease for a new rental property preclude the findings that AFCA made. It expressly referred to that lease when considering the correspondence between Ms Murphy and Mr Edwards about their separation.

87    I have already emphasised AFCA’s recognition of the history of the relationship involving inconsistent or erratic statements or behaviours on Ms Murphy’s part. On the material before it, AFCA was not bound to conclude that the most recent incidents were a mere continuation of an established pattern. After the word “however”, AFCA identified consistency in Ms Murphy’s behaviour and conduct, including by placing significant weight on the Centrelink forms. That evidence, together with Mr Edwards’ own contemporaneous statement that their relationship was over provides a logical and sufficient explanation for the rejection of the case Mr Edwards had advanced.

88    The grounds of appeal giving rise to the second and fourth questions of law are rejected.

Question 3

89    Mr Edwards submits that AFCA erred in law in applying the “interdependency relationship” definition in s 10A of the SIS Act. He acknowledges that that definition requires specific matters to be taken into account and that those factors overlapped considerably with the indicia of a spousal relationship. He contends that AFCA erred in connection with those overlapping facts for the same reasons asserted in connection with Question 2. That part of his submissions can be rejected for the reasons given above.

90    Mr Edwards submits that AFCA otherwise treated the factors to be taken into account as exhaustive of the enquiry and so failed to consider the relationship as a whole. That submission must also be rejected given what I had said about AFCA’s reasoning process and its express recognition of Ms Murphy’s past conduct in leaving and returning, or recanting statements that the relationship was over.

91    It was then submitted that AFCA failed to confront “the necessity of examining further [Ms Murphy’s] disability, the features of their ongoing relationship which accommodated this disability, the nature of the support and care they provided to each other, and the true relation between her staying with her parents in those last days and the subsistence of their relationship”. That too is a complaint that AFCA should have accepted Mr Edwards’ arguments about how Ms Murphy’s behaviour should be interpreted. AFCA expressly considered those submissions and may be fairly understood to have rejected them. AFCA characterised the ongoing cohabitation arrangement existing at the time of Ms Murphy’s death as one of convenience. It did so against a context in which there previously existed a relationship of interdependency. On this topic it was open to AFCA to place considerable weight on Ms Murphy’s conduct in declaring to Centrelink that she and Mr Edwards were then separated under the one roof, and open to find that declaration to have been genuine. If it erred in doing so, the error does not give rise to any question of law. The grounds of appeal relating to this topic are therefore rejected.

92    It follows that the appeal must be dismissed.

Associate:

Dated:    19 September 2024

SCHEDULE OF PARTIES

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