Commonwealth Superannuation Corporation v Truan

FEDERAL COURT OF AUSTRALIA

Commonwealth Superannuation Corporation v Truan [2020] FCA 364

Appeal from:

Truan and Commonwealth Superannuation Corporation [2019] AATA 555

File number:

VID 416 of 2019

Judge:

BROMBERG  J

Date of judgment:

18 March 2020

Catchwords:

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal (“Tribunal”) – spouse’s pension under s 39 Defence Force Retirement and Death Benefits Act 1973 (Cth) (“DFRDB Act”) – appellant and deceased spouse married but not living together – whether marital relationship at time of death for purposes of s 6A(1) of DFRDB Act – s6A(5)(b) DFRDB Act: person taken to be living with another person if satisfied that would have been living with other person except for period of absence because of special circumstances – where Tribunal found deceased spouse’s post-traumatic stress disorder was special circumstance – whether Tribunal failed to consider lack of mutual intention to reconcile as reason for absence – whether Tribunal failed to consider objective evidence in determining that respondent held an intention to reconcile – appeal dismissed.

Legislation:

Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 3, 6A(1), 6A(5)(b), 6B and 39

Cases cited:

Anees v Minister for Immigration and Border Protection [2020] FCAFC 28

Beezley v Repatriation Commission [2015] FCA 78

CCA19 v Secretary, Department of Home Affairs [2019] FCA 946

Gray v Defence Force Retirement and Death Benefits Authority [2004] AATA 450

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527

Rus v Comcare [2017] FCA 239

Salton v Commonwealth Superannuation Corporation (2013) 209 FCR 349

Thiess v Collector of Customs (2014) 250 CLR 664

Date of hearing:

2 March 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

36

Counsel for the Applicant:

Ms R Kaye

Solicitor for the Applicant:

Allens

Counsel for the Respondent:

Mr M Carey

Solicitor for the Respondent:

Peter Falconer & Associates

ORDERS

VID 416 of 2019

BETWEEN:

COMMONWEALTH SUPERANNUATION CORPORATION

Applicant

AND:

LILLIAN TRUAN

Respondent

JUDGE:	BROMBERG  J
DATE OF ORDER:	18 MARCH 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

BROMBERG J:

1. In this proceeding the appellant (“CSC”) appeals from a decision of the Administrative Appeals Tribunal (“Tribunal”) which found that the respondent (“Mrs Truan”) was an eligible spouse to receive a spouse’s pension (“pension”) pursuant to s 39 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (“DFRDB Act”) following the death of her husband (“Mr Truan”).  On 5 September 2017 a delegate of CSC found that Mrs Truan was not entitled to the pension as a marital or couple relationship did not exist between her and Mr…