FEDERAL COURT OF AUSTRALIA

Radanov v Australian Financial Complaints Authority [2026] FCA 929

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the costs of the first respondent, as agreed or assessed.

3.    The second respondent is to notify the Associate to Goodman J within seven (7) days of the date of these orders if it wishes to make submissions as to costs.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.    INTRODUCTION

1    By an amended notice of appeal, Mr Veljko Radanov appeals from a decision of the Australian Financial Complaints Authority (AFCA). By that decision, AFCA: (1) set aside a decision of Retail Employees Superannuation Pty Ltd, qua trustee of the Retail Employees Superannuation Trust to distribute to Mr Radanov the entirety of a death benefit referable to the late Ms Kylie Hrysanidis (the deceased); and (2) decided to distribute that death benefit equally as between Mr Radanov and each of the deceased’s three children.

B.    BACKGROUND AND THE STATUTORY FRAMEWORK

2    As at the date of the deceased’s death on 7 November 2021:

(1)    she was a member of the Trust. As such, a death benefit in the order of $348,600 was payable under r 7 of the rules for the management of the Trust which form part of the deed governing the Trust;

(2)    Mr Athanase Hrysanidis was the deceased’s spouse from whom she had separated;

(3)    the deceased’s children were Ms Caitlin Hrysanidis, Ms Alexandra Hrysanidis and Mr Christopher Hrysanidis; and

(4)    Mr Radanov was in a relationship with the deceased.

3    In the remainder of these reasons, and without intending any disrespect, I will refer to the deceased’s former spouse and her children by their forenames.

4    Rule 8 of the rules provides for the payment of death benefits. In so far as is presently relevant, it provides:

8    Payment of Death Benefits

…

8.5    Payment of a Death Benefit

(a)    Death benefit paid in the discretion of the Trustee

If a Member dies and a benefit is payable under rule 7 (“Death Benefit”), the Trustee must pay the Death Benefit:

(i)    to such one or more of the Member’s Dependants and Legal Personal Representative as is determined by the Trustee;

(ii)    in the proportions and form determined by the Trustee; and

… In exercising its discretion under this rule 8.5(a), the Trustee must take into account any nomination made by the Member that is invalid or that is not binding on the Trustee, as well as the circumstances that have made the nomination invalid or non-binding. The Trustee must not pay a Death Benefit to a person who is not the Member’s Legal Personal Representative or Dependent unless permitted by the Applicable Requirements.

(bold emphasis in original)

5    The rules also include the following definitions:

“Dependant” means any person who in the opinion of the Trustee is at the relevant date (or in the case of a deceased Member, was at the date of death of the deceased Member) a dependant within the meaning of the SIS Act.

“Legal Personal Representative” means the executor or administrator of the deceased Member’s estate.

(bold emphasis in original)

6    The reference in the definition of “Dependant” to the “SIS Act” is to the Superannuation Industry (Supervision) Act 1993 (Cth). Section 10 of that Act defines “dependant” as including:

… the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship.

7    In October 2022, the trustee resolved to pay the entire death benefit to Mr Radanov. The deceased’s children disputed that decision and contended that the death benefit ought to have been split equally between them.

8    In January 2023, the trustee determined to maintain the original decision.

9    In February 2023, Alexandra lodged a complaint with AFCA. That complaint – being a complaint that a decision by a “death benefit decision-maker” (a term defined in s 761A of the Corporations Act 2001 (Cth)) was unfair or unreasonable – was a “superannuation complaint” within the meaning of s 1053(1)(j) of that Act.

10    The process by which AFCA’s decision on that superannuation complaint was to be made was informed by s 1055 of the Corporations Act which provides in so far as is presently relevant:

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 … (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;

…

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

(a)     law; or

(b)     … the governing rules of a regulated superannuation fund, an AFCA regulated superannuation scheme or an approved deposit fund to which the complaint relates; or

...

(bold and italic emphasis in original)

11    Thus, in making its determination, AFCA had all of the powers, obligations and discretions that were conferred upon the trustee, but it was prohibited from making a determination that was contrary to law or the rules.

12    AFCA’s review was to be undertaken de novo: Rushton v Commonwealth Superannuation Corporation (No 3) [2021] FCA 358 at [50] (Rares J).

13    On 30 May 2025, AFCA made its determination. In accordance with s 1055A of the Corporations Act, AFCA gave written reasons for that determination (AFCA’s reasons). AFCA’s reasons contained a detailed explanation of the determination and included a lengthy chronology which summarised the evidence before AFCA.

14    Mr Radanov then exercised his right, under s 1057 of the Corporations Act, to appeal to this Court.

15    The respondents to the appeal are AFCA, the trustee, Alexandra, Athanase, Caitlin and Christopher. Each of the respondents other than AFCA has filed a submitting notice. The trustee has reserved its position with respect to costs.

C.    AFCA’S REASONS

16    I turn now to AFCA’s reasons.

17    AFCA’s first task for the purposes of s 1055(3) and (5) of the Corporations Act was to determine whether it was satisfied that the trustee’s decision in relation to: (1) the complainant (i.e. Alexandra); and (2) any other person joined under s 1056A(3) to the superannuation complaint (i.e. Athanase, Caitlin, Christopher and Mr Radanov) was fair and reasonable in all of the circumstances.

18    Central to AFCA’s task under s 1055 of the Corporations Act was r 8.5 of the rules ([4] above) which, in the circumstances of this case, required payment of the death benefit to such one or more of the persons determined to be the deceased’s dependants; and in the proportions and form determined.

19    AFCA determined that the trustee’s decision was not fair and reasonable in all of the circumstances. That reasoning included:

(1)    Athanase, Caitlin, Alexandra, Christopher and Mr Radanov were each dependants of the deceased as at the date of her death;

(2)    Athanase, Caitlin, Alexandra and Christopher were each not financially dependent upon the deceased;

(3)    Mr Radanov was only partially financially dependent upon the deceased and had a limited expectation of future financial support;

(4)    the deceased expressed a wish to provide Caitlin, Alexandra and Christopher with a lump sum; and

(5)    the trustee’s decision to pay the entire death benefit to Mr Radanov did not adequately consider the limited nature of Mr Radanov’s expectation of future financial support from the deceased.

20    Having reached the conclusion that the trustee’s decision was not fair and reasonable, it was open to AFCA, pursuant to s 1055(5) of the Corporations Act, to then take any one or more of the actions mentioned in s 1055(6) of that Act – i.e. relevantly, to: (1) vary the decision; or (2) set aside the decision and: (a) substitute its own decision; or (b) remit the decision to the trustee for reconsideration (with any directions or recommendations that AFCA wished to make).

21    AFCA decided to substitute its own decision. That determination was expressed as follows:

1.3 Determination

The determination sets aside the trustee’s decision.

AFCA’s substituted decision is that the death benefit be paid:

•    25% to [Alexandra]

•    25% to [Caitlin]

•    25% to [Christopher]

•    25% to [Mr Radanov].

(bold emphasis in original)

22    Other matters noted by AFCA as part of its determination included that:

(1)    the deceased was born in October 1970;

(2)    at the age of 34 (approximately 2004), the deceased suffered a stroke;

(3)    as at the age of 47 in January 2018, the deceased was diagnosed with congestive heart failure or severe cardiomyopathy;

(4)    the deceased and Mr Radanov:

(a)    were in a relationship from at least October 2019;

(b)    resided together from at least October 2019;

(c)    were in a sexual relationship;

(d)    shared equally the costs of their bills and shopping;

(5)    there was financial interdependence between the deceased and Mr Radanov;

(6)    text messages between the deceased and Mr Radanov indicated that the deceased “considered him [Mr Radanov] to be her partner and that she was building a life with him” and consequently, it was open “to the trustee to conclude that they had a mutual commitment to shared life”;

(7)    the deceased:

(a)    did not live at the former “family home” even part-time;

(b)    had not been paying rent before her death;

(c)    was in a poor financial position;

(d)    sometimes borrowed small amounts of money from Mr Radanov;

(e)    wished to have assets to leave to her children; and

(8)    Mr Radanov shared his whole pay packet with the deceased when she was made redundant three to four months before her death.

D.    RELEVANT PRINCIPLES

23    Before addressing the questions stated in the amended notice of appeal, it is convenient to address some principles relevant to the determination of those questions.

24    As noted above, Mr Radanov brings this appeal pursuant to s 1057(1) of the Corporations Act. That section relevantly provides that:

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

25    Thus, the appeal is limited to a question of law. Although classified as an appeal, a proceeding pursuant to s 1057(1) of the Corporations Act is in the original jurisdiction of the Court: Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 472 at 483 [36] (Kenny and Lander JJ, Logan J agreeing at 492 [70] to [71]) (with respect to the predecessor provision).

26    The questions of law stated in the amended notice of appeal and which are pressed are, in substance:

(1)    whether AFCA’s finding that Mr Radanov was only partially financially dependent upon the deceased was:

(a)    legally unreasonable;

(b)    irrational or illogical; or

(c)    a critical finding of fact for which there was no evidential support;

(2)    whether AFCA’s finding that Mr Radanov only had a limited expectation of future financial support from the deceased was:

(a)    legally unreasonable;

(b)    irrational or illogical; or

(c)    a critical finding of fact for which there was no evidential support; and

(3)    whether AFCA erred in failing to give proper consideration to the purpose of superannuation death benefits. In this regard, I note that question 3 in the amended notice of appeal is framed in terms of the “purpose of superannuation”. However, the grounds, and in particular the extracts from the Guidelines (as defined in paragraph 13 of ground 3), upon which counsel for Mr Radanov relies focus upon the “purpose of a superannuation death benefit” and not the “purpose of superannuation”. The submissions were also focussed on the expression “purpose of a superannuation benefit”. Hence, I will treat question 3 as being whether AFCA erred in failing to give proper consideration to the purpose of a superannuation death benefit.

27    The requirements to establish legal unreasonableness on the basis of irrationality or illogicality were summarised by the Full Court of this Court (Allsop CJ, Besanko and O’Callaghan JJ) in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at 27 to 28:

33    The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11],[52], and [135]; Minister for Home Affairs v DUA16 (2020) 95 ALJR 54; 385 ALR 212 at [26]; SZMDS 240 CLR 611 at [130]-[135]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565 at [142].

34    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR 611 at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

35    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

(italic emphasis in original; bold emphasis added)

28    In Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCASJ 42; (2024) 99 ALJR 387 at 392 [27], Steward J explained:

It is unnecessary to repeat the jurisprudence in this area. The contention that a finding is unreasonable or irrational is not made out by disagreeing with the merits of a finding; even strong disagreement is insufficient. It is also not made out by mistaken reasoning. It requires the presence of irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not – in any way – make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

(bold emphasis added)

29    The “no evidence” ground also involves an exacting standard. As Justice Moshinsky explained in BSE17 v Minister for Home Affairs [2018] FCA 1926 at [33]:

The “no evidence” ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39]-[41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J.

(italic emphasis in original)

30    The extant questions stated in the amended notice of appeal require the Court to construe AFCA’s reasons. In this regard, it is well-established (and it is common ground) that the reasons of a decision-maker such as AFCA are to be read fairly as a whole, and not construed minutely and finely with an eye keenly attuned to the perception of error: see, e.g., Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 to 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at 604 [38] (Kiefel CJ, Keane, Gordon and Steward JJ); Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 at 1382 [16] (Gageler CJ, Edelman and Jagot JJ); and RCLN v Minister for Immigration and Citizenship [2025] FCAFC 113 at [27] (Perry, Sarah C Derrington and Abraham JJ). In the context of reasons provided by AFCA, see QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55; (2020) 276 FCR 97 at 119 [89] (Moshinsky, Bromwich and Derrington JJ).

31    In construing AFCA’s reasons in the context of a contention that it failed to consider a particular matter, the oft-cited observations of the Full Court of this Court (French J (as his Honour then was), Sackville and Hely JJ) in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604 to 605 ([46] to [47]) are apposite:

46    … The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

(bold emphasis added)

32    A consequence of the requirement to read AFCA’s reasons as a whole is that individual sections of those reasons are not to be regarded as self-contained or exhaustive of the topics they address: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265 at 286 [50] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ).

E.    THE QUESTIONS STATED IN THE AMENDED NOTICE OF APPEAL

33    I turn now to the extant questions in the amended notice of appeal. The first two questions are addressed to AFCA’s finding that the trustee’s decision was not fair and reasonable. The third question is addressed to that finding and to AFCA’s re-exercise of the discretion to distribute the death benefit.

E.1    The first question

E.1.1    The question and grounds

34    The first question is:

Whether AFCA’s finding that [Mr Radanov] was only partially financially dependent on the Deceased was legally unreasonable, alternatively irrational or illogical, or was a critical finding of fact for which there was no evidential support.

35    This question is supported by the following grounds:

Ground 1: Partial Financial Dependency

1.    In respect of the relationship between [Mr Radanov] and the Deceased, AFCA was satisfied that:

a.    they were in a relationship from at least October 2019 (p6);

b.    they resided together from at least October 2019 (p6);

c.    the Deceased did not live at the former ‘family home’ even part-time (p6);

d.    a sexual relationship existed between them (p6);

e.    there was financial interdependence between them (p7);

f.    the Deceased was financially dependent on [Mr Radanov] at the date of her death (p7); and

g.    the nature of the text messages between them indicated that the Deceased “considered him [Mr Radanov] to be her partner and that she was building a life with him” and consequently, it was open “to the trustee to conclude that they had a mutual commitment to shared life” (p7).

2.    The evidence of financial interdependence before AFCA included:

a.    a Residential Tenancy Agreement signed by [Mr Radanov] and the Deceased dated 24 October 2019;

b.    copies of bank statements from a joint bank account shared by [Mr Radanov] and the Deceased; and

c.    copies of statements showing shared utilities between [Mr Radanov] and the Deceased.

3.    AFCA concluded that no other person beside [Mr Radanov] was in an interdependent relationship or were financially dependent upon the Deceased.

4.     In the circumstances of paragraphs 1 to 3 immediately above, AFCA erred in finding that [Mr Radanov] was only partially financially dependent on the Deceased, as this finding was legally unreasonable, irrational and/or illogical and unsupported by the weight of the evidence.

(italic emphasis in original)

E.1.2    AFCA’s reasoning

36    AFCA’s reasoning to the conclusion that Mr Radanov was only partly financially dependent upon the deceased included:

[Mr Radanov] was only partially financially dependent upon the deceased

The panel assessed the financial dependence of [Mr Radanov], noting his statutory declarations where he stated that, in the last three to four months of the deceased’s life, she was not working and he was providing his entire pay to her. This means at the date of death it was in fact the deceased who was financially dependent upon [Mr Radanov].

The panel noted that [Mr Radanov] had also said he and the deceased shared their expenses equally and, if the deceased borrowed money, she insisted on paying it back. However, the evidence also shows the deceased had not been paying the rent fully and that [Mr Radanov] was left with rental arrears at the time of her death. The panel took into account the lease was on a month to month basis and, not long after the deceased died, [Mr Radanov] found a housemate to share the cost of the rent, so that he could remain in the property. The total rent for the property was $1,586 per month, where the deceased was responsible for $793 per month.

The trustee considered, had the deceased not died, she and [Mr Radanov] would have shared in her retirement savings. However, the panel considered this eventuality depended on uncertain assumptions, as the deceased’s health was in a precarious state and retirement was some way off, and was not a foregone conclusion.

On a reading of the evidence as a whole, the panel considered [Mr Radanov] was partially financially dependent on the deceased at the date of her death and, in view of her health, his future financial expectation was limited.

(bold emphasis in original)

E.1.3    Consideration

37    This question requires consideration as to whether AFCA – in the light of the findings set out in paragraph 1 and the evidence set out in paragraph 2 of ground 1 – reached the conclusion that Mr Radanov was only partly financially dependent upon the deceased in a manner that involved legal unreasonableness, irrationality, illogicality or an absence of evidence.

38    The relevant principles are set out at [27] to [32] above.

39    The essence of the submissions made on behalf of Mr Radanov is that:

(1)    there was no evidence at all upon which a reasonable decision-maker could have concluded that Mr Radanov was only partly financially dependent upon the deceased; and

(2)    the findings and evidence set out in paragraphs 1 and 2 of ground 1 suggest that Mr Radanov was not only partly financially dependent upon the deceased.

40    I do not accept those submissions for the following reasons.

41    When regard is had to all of the evidence before AFCA and all of the findings that it made in its determination, the conclusion that Mr Radanov was partially financially dependent upon the deceased was one that was well open to AFCA. In particular, the findings in the passage set out at [36] above. Further, it is implicit in the submissions made on behalf of Mr Radanov that the only conclusion open to AFCA was to find that Mr Radanov was fully financially dependent upon the deceased, but this cannot be reconciled with the findings in the passage at [36] above, nor with the broader set of findings and evidence set out at [22] above.

42    Further, and as is plain from r 8.5 of the rules, the discretion conferred upon the trustee to distribute death benefits is expressed in very broad terms. The potential recipients are persons who satisfy the description “Member’s Dependant” or “Legal Personal Representative”. There is no requirement, either by way of qualification as a potential recipient, or in the exercise of the very broad discretion, that the death benefit be distributed only to persons who were financially dependent upon the deceased.

43    Counsel for Mr Radanov accepted that there was no requirement that AFCA assess the potential dependants as being anything other than “a dependant” or “a Legal Personal Representative”, but submitted that AFCA was required:

… to determine which of the dependants was a financial dependant. Only financial dependants should receive any of the benefit. At this point, once it had been established that only a single dependant was a financial dependant, the Panel should have deemed the Decision fair and reasonable.

(italic emphasis in original)

44    I do not accept this submission. As noted at [42] above, there is no requirement to distribute death benefits only to persons who were financially dependent upon the deceased. Nor does it follow from the finding that Mr Radanov was the only financially dependent dependant that the trustee’s decision was fair or reasonable. This is particularly so in circumstances where the discretion is broad and AFCA also took into account the limited nature of Mr Radanov’s dependence and the deceased’s expressed wishes to provide lump sums for Caitlin, Alexandra and Christopher.

45    As Justice Banks-Smith explained in Lynn v Australian Financial Complaints Authority [2025] FCA 175 at [139], [154] and [170]: (1) expectations of future financial support on the part of dependants are relevant, but not exhaustive; and (2) AFCA is entitled to have regard to testamentary wishes expressed by a deceased.

46    In summary, AFCA’s finding that Mr Radanov was partially financially dependent upon the deceased was well open to it on the evidence before it. It follows that none of the asserted errors have been established and the appeal fails to the extent that it is based upon question 1.

E.2    The second question

47    I turn now to the second question.

E.2.1    The question and the grounds

48    The second question is:

Whether AFCA’s finding that [Mr Radanov] only had a limited expectation of financial support from the Deceased was legally unreasonable, or alternatively irrational or illogical, or was a critical finding of fact for which there was no evidential support.

49    This question is supported by the following grounds:

Ground 2: Limited Expectation of Financial Support

5.    AFCA was satisfied that a spousal relationship existed (p8).

6.    AFCA considered it was open to the trustee to conclude that [Mr Radanov] and the Deceased had a mutual commitment to a shared life (p7).

7.    There was no explanation from AFCA as to why [Mr Radanov] had only a ‘limited expectation of financial support’, despite the fact that he resided in a spousal relationship with the Deceased and they had a mutual commitment to a shared life.

8.    There was no evidence before AFCA that the Deceased intended to end the relationship or reside anywhere else but with [Mr Radanov] into the future.

9.    In fact, the evidence before AFCA was that the Deceased had come off the title of the former family home.

10.    In the circumstances of paragraphs 5 to 9 immediately above, AFCA erred in finding that [Mr Radanov] had only a limited expectation of financial support, as this finding was legally unreasonable, irrational and/or illogical and not supported by the weight of the evidence.

(italic emphasis in original)

E.2.2    AFCA’s reasoning

50    There are two places in AFCA’s determination where AFCA refers to Mr Radanov having a limited expectation of financial support from the deceased.

51    The first is in a summary paragraph under the heading “2.3 Is the trustee’s decision fair and reasonable?”:

No, although the panel was satisfied [Mr Radanov] was in a spousal relationship with, and was a dependant of the deceased, it considered he was only partially financially dependent on her and had a limited expectation of financial support. The trustee’s decision to pay the entire death benefit to [Mr Radanov] did not adequately consider the limited nature of his expectation. This means the trustee’s decision is not fair and reasonable in its operation in relation to the complainant and joined parties in all the circumstances.

(bold emphasis added)

52    The second is under the sub-heading “[Mr Radanov] was only partially financially dependent upon the deceased” and which is set out at [36] above but reproduced here for ease of reference:

The trustee considered, had the deceased not died, she and [Mr Radanov] would have shared in her retirement savings. However, the panel considered this eventuality depended on uncertain assumptions, as the deceased’s health was in a precarious state and retirement was some way off, and was not a foregone conclusion.

On a reading of the evidence as a whole, the panel considered [Mr Radanov] was partially financially dependent on the deceased at the date of her death and, in view of her health, his future financial expectation was limited.

(bold emphasis added)

E.2.3    Consideration

53    As AFCA explained in the second passage set out at [52] above, it formed the view that Mr Radanov’s expectation of future financial support from the deceased was limited, in view of the precarious state of the deceased’s health and the fact that her retirement was some way off, and not a foregone conclusion. This conclusion was well open on the “evidence as a whole” – to borrow AFCA’s expression – before AFCA. As noted at [22] above, that evidence included that the deceased: (1) was born in October 1970; (2) suffered a stroke at the age of 34; and (3) was diagnosed with congestive heart failure or severe cardiomyopathy at the age of 47.

54    It follows that I do not accept the submission made on behalf of Mr Radanov that there was no evidence before AFCA as to the deceased’s health that would allow AFCA to conclude that Mr Radanov had a limited expectation of future financial support.

55    As the conclusion that Mr Radanov’s future expectation of financial support from the deceased was limited was well open to AFCA on the evidence before it, it follows that none of the contended errors of law were made and that the appeal with respect to the second question also fails.

E.3    The third question

56    I turn now to the third question.

E.3.1    The question and the grounds

57    The third question is (as understood and explained at [26(3)] above):

Whether AFCA erred in failing to give proper consideration to the purpose of a superannuation death benefit.

58    This question is supported by the following grounds (as written):

Ground 3: Purpose of Superannuation

11.    The purpose of superannuation is to provide for a person in their retirement.

12.    The purpose of a superannuation death benefit is primarily to provide financial support to individuals who were financially dependent on a deceased at, or around the time of, their death.

13.    The purpose of a superannuation death benefit is confirmed in section 3.3 of ‘AFCA Approach to superannuation death benefit complaints’ (the Guidelines) which state:

“The purpose of a death benefit is primarily to provide for those people who were financially reliant on the deceased member at or around the date of death and who might have expected continuing financial support from the member into retirement, but for the member’s death. This will usually include a surviving partner, a person who was in an interdependency relationship with the member and anyone who was financially dependent on the deceased member.”

13A.    As a matter of law, government Guidelines should be followed unless a cogent reason exists to the contrary.

14.    AFCA determined that none of the Deceased’s children were financially dependant.

15.    AFCA determined that [Mr Radanov] was financially dependant on the Deceased.

16.    In distributing the death benefit to dependants who were not financially dependant on the Deceased, in circumstances where one of the dependants was, AFCA erred in that:

a.    has failed to give due consideration to the purpose of superannuation and/or death benefits;

b.    failed to follow the Guidelines in relation to dealing with superannuation death benefits; and

c.    failed to provide any cogent reason as to why the Guidelines should not be followed, in breach of s1055(7)(a) of the Corporations Act 2001 (Cth) and the law.

(bold and italic emphasis in original)

E.3.2    Consideration

59    As explained at [26(3)] above, I have treated this question as one concerning the purpose of superannuation death benefits.

60    In his oral submissions, counsel for Mr Radanov stated that it was not part of Mr Radanov’s case that as a matter of statutory construction, the Guidelines were a mandatory relevant consideration.

61    Rather, his case was that AFCA failed to give consideration to a relevant matter, namely the purpose of superannuation death benefits as expressed in the Guidelines. In this regard, he submitted, the Guidelines were a policy that AFCA should have followed, citing Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 and 645 (Brennan J).

62    Each of Mr Radanov and AFCA referred to parts of the Guidelines. Mr Radanov referred – in an annexure to his written submissions – to various parts of the Guidelines. However, those parts appear to be from an earlier (January 2022) version of the Guidelines than the version in the joint list of authorities provided to the Court (which version is dated May 2025). As noted earlier, AFCA’s determination was made on 30 May 2025.

63    The parts of the Guidelines upon which counsel for Mr Radanov relied are as follows (the marking up records the changes made by the 2025 version of the Guidelines):

1.3 Summary

AFCA considers that tThe purpose of a superannuation death benefit is primarily to provide for those dependants of a superannuation fund member who would have continued to rely on the member for financial support, but for the member’s untimely death.

Subject to the requirements of a fund’s governing rules and legislative requirements, in allocating a superannuation death benefit among the member’s dependants, preference is generally given to those dependants who might have expected to continue to receive financial support from the member or who had an ongoing right to receive financial support from the member …

…

23.3 What are the relevant considerations in distributing superannuation death benefits?

…

Purpose of superannuation death benefits

When a trustee makes a discretionary decision, it must make its decision consistently with the purpose behind the discretion.

AFCA considers that tThe purpose of a superannuation death benefit is primarily to provide for those people who were financially reliant on the deceased member at or around the date of death and who might have expected continuing financial support from the member into retirement, but for the member’s death. This will usually include a surviving spousepartner, minor children, a person who was in an interdependency relationship with the member and anyone who was financially dependent on the deceased member.

Who had an expectation of ongoingrelied on the member for financial support?

Anyone who was being financially supported by the deceased member just before the member died, and who had a reasonable expectation that this support would be ongoing, would generally have high priority in the allocation of a death benefit. This may include a surviving spousepartner, minor children and any adult children who were receiving ongoing and regular financial support from the member with an expectation for it to continue.

Generally, a child would be expected to be financially dependent on a parent up to the age of 18. However, there will be exceptions to this if an older child is still reliant on their parent for accommodation, food and day to day requirements of daily living, or if regular support, such as for further education expenses, has been provided, or was reasonably expected to be provided, after age 18.

The extent and expected duration of financial support is a relevant factor in determining the appropriate allocation of a death benefit. It is for this reason that a surviving spouse, who might reasonably have expected to share in the deceased member’s retirement income, is often allocated a larger portion. The relative ages of minor children are also relevant for this reason. However, as with all aspects of a trustee’s and AFCA’s consideration about the distribution of a death benefit, all the circumstances must be taken into account.

The concept of financial dependence generally requires the provision of regular financial contributions towards the other person’s living expenses, even if the amounts are small. The fact that a deceased member owed money to a claimant does not make the claimant a financial dependant.

…

23.4 When mightdo adult children receive a share of a superannuation death benefit?

Adult children may receive a share of a death benefit if they can show they were financially dependent on the deceased member at the date of the member’s death with an expectation that this support would continue but for the member’s death. Alternatively, they can receive a share of a death benefit if there are no other dependants who were financially dependent on the deceased member or who had a reasonable expectation of support from the deceased member.

Adult children cannot claim a share of a superannuation death benefit simply because the deceased member may have failed to provide support for them when they were minors or because the deceased member may not have included them in the deceased member’s Will. It is not a purpose of superannuation to right past wrongs. of a deceased member will be dependants, if they fall within the definition of ‘child’ under the fund’s governing rules. However, an adult child would generally not be expected to receive a share of their parent’s death benefit unless:

•    there are no other dependants

•    there are no other dependants who were financially dependent on the deceased member or who had a reasonable expectation of ongoing support from the deceased member

•    there are financial dependants with a reasonable expectation of continuing financial support from the deceased member, and the death benefit is greater than the amount the trustee is satisfied, based on persuasive evidence, is required to cover that expectation. In such circumstances, making payment of an entire death benefit to the financial dependants to the exclusion of other dependants such as adult children may not be fair and reasonable, or

•    they can show they were financially dependent on the deceased member at the date of the member’s death with an expectation that this support would have continued but for the member’s death.

AFCA occasionally sees circumstances where a trustee has allocated a small part of a death benefit to an adult child in recognition of their relationship with the deceased member, even if there was no financial dependency. AFCA would not generally find such a decision to fall outside the range of fair and reasonable decisions where the allocation to such adult child was small in proportion to the amount of the benefit, and did not prevent the reasonable expectations of other dependants in relation to ongoing financial support from the deceased member from being satisfied.

Generally, AFCA does not expect a trustee will allocate part of a death benefit to an adult child simply because the deceased member failed to provide support for them when they were a minor or because the deceased member did not include them in the deceased member’s Will. It is not a purpose of superannuation to right past wrongs.

…

34.1 Case studies and examples

…

3.3 Example 1 – adult child beneficiaries who were not financially dependentCase Study one – aAdult child beneficiaries who were not financially dependent

The deceased member is survived by a spouse and minor children. The trustee distributes 100% of the death benefit to the spouse to provide continuing support for the spouse and the minor children following the member’s death.

The adult children of a former relationship complain that they have not been allocated any of the death benefit. They say that the deceased member never paid child support for them.

AFCA Approach

If the adult children were not financially dependent on the deceased member as at the date of death, AFCA would find that a distribution of 100% of the death benefit to the spouse (for the benefit of the spouse and minor children), consistent with the purpose of a superannuation death benefit, would be fair and reasonable in the circumstances. should be made in favour of the spouse and minor children, consistent with the purpose of a superannuation death benefit. A superannuation death benefit should not be used to remedy historical failures.

A distribution of 100% of the death benefit to the spouse (for the benefit of the spouse and the children) would be fair and reasonable in the circumstances.

(bold emphasis in original)

64    AFCA drew the Court’s attention to the following parts of the Guidelines:

We have created a series of AFCA Approach documents, such as this one, to help consumers and financial firms better understand how we reach decisions about key issues.

These documents explain the way we approach some common issues and complaint types that we see at AFCA. However, it is important to understand that each complaint that comes to us is unique, so this information is a guide only. No determination (decision) can be seen as a precedent for future cases, and no AFCA Approach document can cover everything you might want to know about key issues.

…

1.3    Summary

AFCA considers that the purpose of a superannuation death benefit is primarily to provide for those dependants of a superannuation fund member who would have continued to rely on the member for ongoing financial support, but for the member’s death.

Subject to the requirements of a fund’s governing rules and legislative requirements, in allocating a superannuation death benefit among the member’s dependants, preference is generally given to those dependants who might have expected to continue to receive financial support from the member or who had an ongoing right to receive financial support from the member. In some circumstances, where the trustee has not found a dependant or a legal personal representative (LPR), a death benefit may be paid to a person who is not a dependant.

While this Approach includes guidance about a range of matters, AFCA expects trustees to consider each death benefit claim on its own facts. Circumstances will arise from time to time where applying general principles may not result in a fair and reasonable outcome, and AFCA expects trustees to review each proposed decision about a death benefit claim, to satisfy themselves that the decision is fair and reasonable in its operation in relation to the parties in all the circumstances.

…

2.3    What are the relevant considerations in distributing superannuation death benefits?

Because AFCA has the same powers, obligations and discretions as the trustee, AFCA must take the same considerations into account in deciding whether a trustee’s decision in relation to the distribution of a death benefit was fair and reasonable in all the circumstances.

Fund governing rules

A trustee is bound by the fund’s governing rules in paying a superannuation death benefit and cannot make a payment that is not permitted by the governing rules. AFCA is similarly bound by the fund’s governing rules in dealing with complaints about the distribution of a death benefit.

Purpose of superannuation death benefits

When a trustee makes a discretionary decision, it must make its decision consistently with the purpose behind the discretion.

AFCA considers that the purpose of a superannuation death benefit is primarily to provide for those people who were financially reliant on the deceased member at or around the date of death and who might have expected continuing financial support from the member but for the member’s death. This will usually include a surviving spouse, minor children, a person who was in an interdependency relationship with the member and anyone who was financially dependent on the deceased member.

…

2.4    When might adult children receive a share of a superannuation death benefit?

Adult children of a deceased member will be dependants, if they will fall within the definition of ‘child’ under the fund’s governing rules. However, an adult child would generally not be expected to receive a share of their parent’s death benefit unless:

•    there are no other dependants

•    there are no other dependants who were financially dependent on the deceased member or who had a reasonable expectation of ongoing support from the deceased member

•    there are financial dependants with a reasonable expectation of continuing financial support from the deceased member, and the death benefit is greater than the amount the trustee is satisfied, based on persuasive evidence, is required to cover that expectation. In such circumstances, making payment of an entire death benefit to the financial dependants to the exclusion of other dependants such as adult children may not be fair and reasonable, or

•    they can show they were financially dependent on the deceased member at the date of the member’s death with an expectation that this support would have continued but for the member’s death.

AFCA occasionally sees circumstances where a trustee has allocated a small part of a death benefit to an adult child in recognition of their relationship with the deceased member, even if there was no financial dependency. AFCA would not generally find such a decision to fall outside the range of fair and reasonable decisions where the allocation to such adult child was small in proportion to the amount of the benefit, and did not prevent the reasonable expectations of other dependants in relation to ongoing financial support from the deceased member from being satisfied.

…

(bold emphasis in original; underline emphasis added)

65    I am not satisfied that AFCA did not take the purpose of superannuation death benefits into account in its determination. That is so, for the following reasons.

66    First, a conclusion that an administrative decision-maker did not take a matter into account involves the drawing of an inference from (at least) the decision-maker’s reasons. As is explained in the authorities set out at [30] and [31] above:

(1)    those reasons are not to be read with an eye keenly attuned to error; and

(2)    an inference that an administrative decision-maker failed to address an issue may be drawn from a failure to expressly deal with that issue in its reasons, but such an inference is not too readily to be drawn where the reasons are otherwise comprehensive and the issue has been identified in the reasons.

67    Secondly, it is evident from AFCA’s reasons that it did identify and give consideration to the purpose of superannuation death benefits. At pages 10 to 11 of AFCA’s reasons, AFCA stated:

[Alexandra], [Christopher] and [Caitlin] were not financially dependent upon the deceased

[Alexandra], [Christopher] and [Caitlin] say that, by letting them stay in the family home free of charge, they were financially dependent upon the deceased. The panel did not consider this to be financial dependence in the relevant sense, particularly when ultimately the family home was not in the deceased’s name from July 2020. This is because the concept of financial dependence requires more than occasional financial support. It generally requires the provision of regular financial contributions of specified amounts for everyday living expenses, even if the amounts are small. This ties in with the purpose of a superannuation death benefit, which is to provide for a deceased member’s dependants who were receiving ongoing financial support and might reasonably have expected to continue to receive financial support from the deceased member, had the member not died.

(bold emphasis in original; underline emphasis added)

68    Thirdly, AFCA’s reasoning to its determination to distribute the death benefit in the manner described at [21] above does not suggest that the purpose of superannuation death benefits was ignored. That reasoning was as follows:

AFCA has power to substitute its own decision

If AFCA finds a trustee’s decision to be unfair and unreasonable, it may exercise its determination-making powers to the extent necessary to remove the unfairness or unreasonableness found to exist. AFCA may set aside the decision and substitute its own decision.

The panel noted the death benefit is made up of the deceased’s modest account balance and an insured amount of $307,500. It acknowledged the close personal relationships between the deceased and [Mr Radanov] and the deceased and her children.

The panel started from the premise that [Mr Radanov] should receive 25% of the death benefit. This is because it considered an amount of approximately $87,000 would cover the deceased’s share of the rent into the future (noting the lease was month to month) and also takes into account the rental arrears he had to pay. The panel considered an amount exceeding $87,000 would amount to a windfall for [Mr Radanov], as it would realistically exceed his future financial expectations of the deceased.

Therefore, to remedy the unfairness and unreasonableness of the trustee’s decision, the panel considered it appropriate to split the death benefit equally between [Alexandra, Caitlin, Christopher and Mr Radanov]. This is because it considered 25% of the death benefit adequately met [Mr Radanov’s] partial financial dependence and took into account his importance in the deceased’s life. It also considered each of the deceased’s children should receive 25% to take into account their importance and the deceased’s wishes. It did not consider [Athanase] should receive a part of the death benefit, because, while not disputing his importance in the deceased’s past, the panel was cognizant that their marriage had effectively ended and he had already received the deceased’s share of the family home.

69    As AFCA explained, it considered that:

(1)    any payment to Mr Radanov in excess of $87,000 would exceed his future financial expectations of the deceased and provide him with a windfall payment; and

(2)    25 per cent of the death benefit “adequately met [Mr Radanov’s] partial financial dependence …”.

70    I note that 25 per cent of the death benefit (approximately $348,600) is in the order of $87,150.

71    Notably, [2.4] of the Guidelines contemplates a scenario such as the present, in which some of the death benefit may be used to satisfy the reasonable expectations of a financially dependent dependant, with the remainder used for other dependants, as is apparent from the underlined passage in the final subparagraph set out at [64] above.

72    Again, the submission on behalf of Mr Radanov that superannuation death benefits are distributable only among financially dependent dependants cannot be accepted; and AFCA may have regard to testamentary wishes expressed by a deceased (see [44] to [46] above).

73    As I am not satisfied that AFCA failed to have regard to the purpose of a superannuation death benefit, it is unnecessary to consider whether it was obliged to do so.

74    For the reasons set out above the appeal, to the extent it is based upon question 3, must be dismissed.

F.    COSTS

75    For the foregoing reasons, the appeal should be dismissed.

76    AFCA seeks its costs of the appeal. I am conscious that AFCA was the decision-maker whose decision was the subject of this appeal and may have been expected to take a minimal role in the appeal (see The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35 to 36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ)). However, in circumstances where: (1) each of the other respondents to the appeal filed a submitting notice, depriving the Court of a contradictor; (2) AFCA provided assistance to the Court expressly mindful of the need not to traverse points in respect of which it might subsequently have been called upon to determine in the event of a remittal by the Court; and (3) counsel for Mr Radanov did not submit that AFCA should not have its costs in the event of an unsuccessful appeal, it is appropriate that Mr Radanov pay AFCA’s costs of the appeal. In reaching this conclusion, I have drawn from the observations made in MetLife Insurance Ltd (ACN 004 274 882) v Australian Financial Complaints Authority (ACN 620 494 340) (No 3) [2022] FCA 849; (2022) 411 ALR 163 at 167 to 168 ([10] to [13]) (Colvin J); Resolution Life Australasia Ltd v Teagle [2023] FCA 1607 at [39] to [40] and [91] (Stewart J); and Lynn at [10] to [13] and [173] (Banks-Smith J).

77    As noted above, the trustee’s submitting notice reserved its position as to costs. The trustee did not participate in the proceeding. Nevertheless, out of an abundance of caution I will allow the trustee the opportunity to make submissions as to costs.

G.    CONCLUSION

78    The appeal should be dismissed. AFCA should have its costs. The trustee should have an opportunity to make any submissions it wishes as to costs. I will make orders accordingly.

Associate:

Dated:    17 July 2026

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