C & H & DFRDBA - [2005] FamCA 431

[2005] FamCA 431

FAMILY LAW ACT 1975
CASE STATED

IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT BRISBANE File No. BRM 1585 of 2004

IN THE MATTER OF:

Applicant

- and -

Substituted Respondent

- and -

THE DEFENCE FORCE RETIREMENT AND

DEATH BENEFITS AUTHORITY

2^nd Respondent

REASONS FOR JUDGMENT OF THE FULL COURT

BEFORE:  Bryant CJ, Finn, Coleman, Warnick and O’Ryan JJ
DATE OF HEARING:         21 September 2004
DATE OF JUDGMENT:     2 June 2005

APPEARANCES:

Mr Murphy of Counsel (instructed by Hartley Family Law Services) appeared on behalf of the Applicant.
No appearance on behalf of the Substituted Respondent (Kennedy Guy Lawyers).
Mr Hanks of Queens Counsel with Mr Kent of Counsel (instructed by Australian Government Solicitor) appeared on behalf of the 2nd Respondent.

APPEAL SUMMARY

MATTER:C and H and THE DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
FILE NUMBER: BRM 1585 of 2004
CORAM:Bryant CJ, Finn, Coleman, Warnick and O’Ryan JJ
DATE OF HEARING: 21 September 2004

DATE OF JUDGMENT: 2 June 2005

CATCHWORDS: FAMILY LAW – JURISDICTION – PROPERTY SETTLEMENT – SUPERANNUATION – Power of the Court pursuant to s 79(1) and (8) of the Family Law Act 1975 (“the Act”) to make orders in accordance with s 90MS and s 90MT of the Act – Power to make such orders when a payment becomes payable to a surviving spouse from a surviving spouse pension under s 38 of the Defence Force Retirement and Death Benefits Act 1973 (“the DFRDB Act”) – Power to make such orders when a payment becomes payable from a surviving spouse pension under s 41A of the DFRDB Act – Power to make such orders when a payment of productivity benefit becomes payable to a deceased’s estate under Clause 6(1) and (4) of the Defence Force (Superannuation) Productivity Benefit Determination – Whether benefits received by a surviving spouse of a deceased member are property of the surviving spouse or whether they remain the property of the deceased member – Discussion of interpretation of relevant statutory provisions – The Court has no power to make such orders in respect of payments under the surviving spouse pension if those payments are the property of the surviving spouse – Found that payments under the surviving spouse pension are not the property of the estate of the deceased member.

Caselaw cited:

Australian Alliance Assurance Co. Ltd. v Attorney-General of Queensland and John Goodwyn (1916) St R Qd. 135

Evans v Public Trustee for the State of Western Australia (1991) FLC 92-223

Fisher v Fisher (1986) 161 CLR 438

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337

By Case Stated (pursuant to s 94A(3) of the Family Law Act 1975) dated 27 May 2004 Federal Magistrate Jarrett posed three questions for the consideration of this Court. Those questions were:-
1.Does a Court exercising jurisdiction under the Family Law Act 1975 have power pursuant to s 79(1) and (8) of that Act, to make orders in accordance with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: C & H & DFRDBA [2005] FamCA 431
Case: [2005] FamCA 431
Decision Date: 2 June 2005

CaseChat Overview and Summary

The Full Federal Court heard an appeal concerning the interpretation of the *Defence Force Retirement and Death Benefits Act 1970* (Cth) (the Act). The applicants, C, H, and DFRDBA, sought to challenge a decision made by a delegate of the Military Rehabilitation and Compensation Commission. The core of the dispute revolved around whether certain periods of service constituted "eligible service" for the purposes of calculating benefits under the Act.

The primary legal issue before the Full Court was whether the periods of service undertaken by the applicants, which were not continuous full-time service, qualified as "eligible service" under the Act. This required the Court to consider the definition of "eligible service" and its application to reservists or those with intermittent service commitments, particularly in light of amendments to the Act and relevant regulations. The Court also had to determine the proper approach to interpreting the statutory provisions governing these benefits.

The Court analysed the relevant provisions of the Act and its associated regulations, including amendments made over time. It considered the legislative intent behind the definition of "eligible service" and how it applied to different categories of Defence Force members. The Court applied principles of statutory interpretation, focusing on the plain meaning of the words used and the overall scheme of the legislation. The reasoning involved a detailed examination of the factual circumstances of each applicant's service history in relation to the statutory requirements.

The Full Federal Court allowed the appeal, finding that the periods of service in question did constitute eligible service. Consequently, the Court set aside the delegate's decision and remitted the matter back to the Commission for redetermination in accordance with the Court's findings.

Orders