FRANKS and DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

[2010] AATA 748

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 748

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4287

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAULINE FRANKS

Applicant

And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date10 September 2010

PlaceAdelaide

Decision For reasons given orally, the Tribunal affirms the decision under review.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

DEFENCE – Defence force retirement and death benefits – spouse pension – meaning of “spouse who survives deceased person” – meaning of “marital relationship” – matrimonial home sold – separation was not for a period of temporary absence or because of special circumstances – decision under review affirmed.

Defence Force Retirement and Death Benefits Act 1973 (Cth), ss 6A and 6B

Commissioner for Superannuation v Scott (1987) 13 FCR 404

Secretary, Department of Social Security v Wetter (1993) 40 FCR 22

WRITTEN REASONS FOR ORAL DECISION

10 September 2010   Deputy President D G Jarvis

1.      The respondent, the Defence Force Retirement and Death Benefits Authority, has requested written reasons for the decision of the tribunal that I delivered orally at the conclusion of the hearing of this matter.  The following is an edited version of the reasons I gave orally for my decision.

2.      The applicant, Pauline Franks, is the widow of the late Terrence Milton Franks, deceased, who was a member of the Defence Force Retirement and Death Benefits Scheme.  After his death, Mrs Franks lodged a claim for a spouse’s benefit under that Scheme.  The rejection of her application was confirmed by the Authority on 7 November 2008.  Mrs Franks has applied to this tribunal for review of that decision.

Issue before the Tribunal

3. The issue before this tribunal is whether Mrs Franks is a spouse who survived a deceased person, within the meaning of ss 6A and 6B of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (the Act).

Background Facts

4.      The background facts are not in issue in this matter.

5.      The deceased joined the Navy in November 1967 and left the Navy after 20 years’ service.  Mrs Franks and the deceased were married on 27 December 1969, and remained married as at the date of death of the deceased, on 5 August 2005.

6.      The parties separated in August 2003.  Prior to the separation, they had been living in a matrimonial home at Kadina.  Their home was sold in December 2003.  When they separated, the deceased continued to live in the matrimonial home until it was sold, and Mrs Franks went to a friend’s house at Wallaroo for about two months.  She then returned to Kadina and rented a house there.  After the matrimonial home was sold, the deceased went to live at Moonta, and rented a house there.

Legislative Scheme

7.      Section 39 of the Act provides in effect for the surviving spouse of a deceased recipient member of the Scheme to be entitled to a pension on the death of the member.

8. Section 6B of the Act provides for the circumstances in which a person is a spouse who survives a deceased person for the purposes of the Act, and this in turn depends on whether the person had a “marital relationship” with the deceased at the time of his or her death. Sections 6A and 6B as in force at the relevant time provided as follows:

6A  Marital relationship

(1)For the purposes of this Act, a person had a marital relationship with another person at a particular time if the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis at that time.

(2)For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person’s husband or wife on a permanent and bona fide domestic basis at a particular time only if:

(a)the person had been living with that other person as that other person’s husband or wife for a continuous period of at least 3 years up to that time; or

(b)the person had been living with that other person as that other person’s husband or wife for a continuous period of less than 3 years up to that time and the Authority, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis at that time;

whether or not the person was legally married to that other person.

(3)For the purposes of this Act, a marital relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).

(4)For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:

(a)the person was wholly or substantially dependent on that other person at the time;

(b)the persons were legally married to each other at the time;

(c)       the persons had a child who was:

(i)        born of the relationship between the persons; or

(ii)       adopted by the persons during the period of the relationship;

(d)       the persons jointly owned a home which was their usual residence.

(5)For the purposes of this section, a person is taken to be living with another person if the Authority is satisfied that the person would have been living with that other person except for a period of:

(a)       temporary absence; or

(b)absence because of special circumstances (for example, absence because of the person’s illness or infirmity or a posting of the person).

6B  Spouse who survives a deceased person

(1)       In this section:

deceased person means a person who was, at the time of his or her death, a contributing member, a recipient member or a person in respect of whom deferred benefits were applicable.

(2)For the purposes of this Act, a person is a spouse who survives a deceased person if:

(a)the person had a marital relationship with the deceased person at the time of the death of the deceased person (the death); and

(b)in the case of a deceased person who was a recipient member at the time of the death:

(i)the marital relationship began before the recipient member became a recipient member; or

(ii)the marital relationship began after the recipient member became a recipient member but before the recipient member reached 60; or

(iii)in the case of neither subparagraph (i) nor (ii) applying—the marital relationship had continued for a period of at least 5 years up to the time of the death.

(3)In spite of subsection (2), a person is taken to be a spouse who survives a deceased person if:

(a)the person had previously had a marital relationship with the deceased person; and

(b)the person did not, at the time of the death, have a marital relationship with the deceased person but was legally married to the deceased person; and

(c)in the case of a marital relationship that began after the deceased person became a recipient member and reached 60—the relationship began at least 5 years before the deceased person’s death; and

(d)in the Authority’s opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.”

Consideration

9.      In considering the issues that I now must decide, I have taken into account all of the information in the section 37 documents.  That information includes material that was placed before the Authority on behalf of Mrs Franks, including, in particular, the letter from her doctor, a letter and statutory declaration from Mrs Franks’ brother-in-law, and other material which indicates that she was nominated by the deceased, before his death, as his beneficiary under his superannuation fund.

10.     I have also taken into account the evidence Mrs Franks gave, in the hearing this morning, and I have noted the concern or criticism that Mr Roche, counsel for the Authority, made of her evidence.  It is correct that Mrs Franks referred, in her evidence this morning, to some matters that have not been referred to previously and perhaps, in some respects, her evidence differed from material that had been previously placed before the Authority.  However, I accept that Mrs Franks gave an honest account of the relevant matters that she was asked about, and I take into account that, as she said, the information she provided was given in answer to some questions which were perhaps a little different from questions she had been asked before.  Also, sometimes in hearings of this sort, the tribunal receives further information and further evidence than was available to the person who made the reviewable decision.  I think that that is the case in the present matter.

Did the applicant have a marital relationship with the deceased?

11. The first issue that I must consider is the issue raised by s 6A of the Act, and that is the issue of whether the parties were in a marital relationship at the time of the death of the deceased. As far as that is concerned, it is necessary to have regard to the provisions of s 6A(1), and to look at the situation at the date of death of the deceased and the question of whether Mrs Franks ordinarily lived with the deceased on a permanent and bona fide domestic basis at that time.

12.     It is not in dispute in this matter that the parties were not living with each other, and that they remained separated at the time of the deceased’s death.  I have, of course, taken into account that the parties still had an amicable relationship and saw each other on a regular basis, as Mrs Franks said, and saw each other in the circumstances and on the occasions that Mrs Franks referred to.  However, the fact remains that they did not live together at the time of the death of the deceased, and had not done so ever since the date of separation.

13. I have also considered whether Mrs Franks could be said to have been taken to be living with the deceased, within the meaning of s 6A(5). Under that section, if I were satisfied that they would have been living together, except for a period of temporary absence or because of some special circumstances, then under that section they would, nevertheless, have been taken to have been living together. Mrs Franks said in evidence that the parties separated because they both agreed to separate, and because they needed a little time apart. I also understand, from Mrs Franks’ evidence, that subsequently there were discussions about a reconciliation, but on each occasion “things got in the way”, or “a thing got in the way”, and Mrs Franks explained, in her evidence, what that was.  The position, therefore, was that although there were discussions about reconciliation, that never occurred.

14. Having regard to all of the evidence before me, I am not satisfied that the parties would have been living together, except for a period of temporary absence, within the meaning of s 6A(5)(a) of the Act. The facts are that the matrimonial home had been sold; as mentioned above, the parties did not ever reconcile; and nor was there any evidence of a prospective date by which a reconciliation might have taken place, or any basis on which I could find that the period of separation was going to come to an end or would have come to an end, in the period prior to the deceased’s death or, indeed, within a definable period after that, if he had not died. As Mr Roche submitted, the continuing good relations between the parties is not enough to enable me to say that the absence had only been temporary, or that the separation had only been temporary.

15.     The references in the doctor’s letter or in Mrs Franks’ brother-in-law’s letter and statutory declaration, in my view, do not take the matter any further, and I have based my decision primarily on the evidence given by Mrs Franks.  She, of course, could speak of her relationship with the deceased of her own first-hand knowledge.  The fact of the matter is that whatever the parties might have contemplated when they separated, they remained apart for about two years until the deceased’s death, and, in all of the circumstances that could not be described as a temporary absence or separation.

16. I am also not satisfied that this is a case where special circumstances apply (see s 16A(5)(b)). Unfortunately, separation due to a break down in marital relations is not unusual, and there were no unusual features of this case (even allowing for the deceased’s illness in the period after he had been diagnosed as suffering from the condition from which he died) from which I am satisfied that the deceased would have been living with Mrs Franks at the time of his death except for a period of absence because of special circumstances, within the meaning of s 6A(5)(b). I find that his absence was because of the parties’ continued separation, which commenced before the diagnosis of the terminal condition, and not because of special circumstances.

Was the applicant wholly or substantially dependent on the deceased?

17.     The second main issue that I have to consider in this matter is whether Mrs Franks was wholly or substantially dependent upon the late Mr Franks at the time of his death.

18.     I have considered the evidence before me, both in the section 37 documents and the evidence given by Mrs Franks, as to the financial arrangements that existed between her and her late husband.  I must also interpret the section in accordance with the decisions of the Federal Court in two cases, which I regard as important.

19.     The first is the case to which Mr Roche referred, namely the Commissioner for Superannuation v Scott (1987) 13 FCR 404. In that case, a Full Court of the Federal Court did not follow an earlier decision of this tribunal, and decided that the expression “wholly or substantially” had to be construed, so that the word “substantially” meant something more than trivial, minimal or nominal.  Fisher and Spender JJ said, at 408, that:

“It is necessary to construe [the word “substantially”] alongside the word “wholly” and not by reference to what it does not mean.  It has in our opinion the meaning, in relation to a person in the expression “wholly or substantially dependent”, that that person is primarily, essentially or in the main dependent upon another person.”

20.     A similar interpretation was placed on the same expression in the case of Secretary, Department of Social Security v Wetter (1993) 40 FCR 22. In that case Hill J said, at 30:

“In the present context, the word “substantially” appears in contrast to the word “wholly” but forms a phrase with it.  If “substantially” bore the meaning suggested by the Tribunal, namely, something more than merely incidental, there would have been no need at all for the word “wholly” to have appeared.  It is the word “wholly” that gives context here to the word “substantially.”  In the context, in my view, the word means something less than “wholly” but more than merely “insubstantial” or “insignificant” and is appropriately paraphrased by the words “in the main” or “as to the greater part.”

His Honour went on to say that he was reinforced in his view by the adoption of the same view by the Full Court in Scott’s case, to which I have already referred.

21.     I therefore interpret the words “wholly or substantially” and, in particular, the word “substantially”, in accordance with the interpretation placed on those words in those two cases.

22.     I understand, from Mrs Franks’ evidence and submission, that the assistance which the deceased gave her was very important to her and clearly supplemented the income she was receiving from her work as a childcare worker and from Centrelink, and I have accepted her evidence as to the quantification of the amount of assistance which the late Mr Franks gave her.  However, having regard to the interpretation that has been placed on the word “substantially”, I do not consider that that assistance could be said to have rendered her primarily, essentially or in the main dependent upon the deceased, or, to use the words used by Hill J, that Mrs Franks was “in the main or as to the greater part” dependent on the late Mr Franks. I therefore conclude that it could not be said that at the time of the death of the deceased, Mrs Franks was wholly or substantially dependent on him, within the meaning of s 6B(3) of the Act.

Decision

23.     For the reasons outlined above, although I understand that Mrs Franks’ regards herself as morally and ethically entitled to the benefit that she has claimed, I must find, on the proper application of the relevant legislation, that she does not qualify for the benefit and, therefore, with some reluctance, I must affirm the decision under review.

I certify that the 23 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G Jarvis

Signed:         .....................................................................................

Associate

Date/s of Hearing  10 September 2010
Date of Decision  10 September 2010

Date of publication of

written reasons  30 September 2010
Applicant  Appeared in Person
Counsel for the Respondent     Mr D Roche
Solicitor for the Respondent     Australian Government Solicitor