Harris v Trustee Commonwealth Superannuation Scheme - [2006] FCA 373

FEDERAL COURT OF AUSTRALIA
Harris v Trustee Commonwealth Superannuation Scheme [2006] FCA 373
ADMINISTRATIVE LAW – whether entitlement to superannuation benefits pursuant to statute – husband and wife separated – maintained an extent of relationship including living together on occasions – wife engaged in full-time employment and received some additional financial assistance from husband – husband predeceased wife – whether statutory meaning of marital relationship fulfilled – whether entitlement to husband’s superannuation established.
De Facto Relationships Act 1984 (NSW)
Superannuation Act 1976 (Cth), ss 8A, 8B, 81
Superannuation (Resolution of Complaints) Act 1993 (Cth), ss 19, 23
Commissioner for Superannuation v Scott (1987) 71 ALR 408 applied
Faull v Superannuation Complaints Tribunal (Supreme Court of New South Wales – 26 November 1999 (unreported) compared
Furmage v Social Security Commission (1979-1981) New Zealand Administrative Reports Vol 2 page 75 discussed
In the Marriage of Pavey (1976) 1 Fam LR11, 358 discussed
Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690 applied
Re Schlatter andDefence Force Retirement and Death Benefits Authority andBrown (1983-1986) 8 ALD 133 discussed
Todd and Todd (No 2) (1976) 9 ALR 401 discussed
Roy v Sturgeon (1986) 11 NSWLR 454 discussed
MAREE HARRIS v TRUSTEE COMMONWEALTH SUPERANNUATION SCHEME AND COMMONWEALTH SUPERANNUATION SCHEME BOARD
NSD 283 OF 2005
CONTI J
5 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 283 OF 2005

BETWEEN:

MAREE HARRIS
APPELLANT

AND:

TRUSTEE COMMONWEALTH SUPERANNUATION SCHEME
FIRST RESPONDENT

COMMONWEALTH SUPERANNUATION SCHEME BOARD
SECOND RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

5 APRIL 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be dismissed.

2.The appellant pay the respondents’ costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 283 OF 2005

BETWEEN:

MAREE HARRIS
APPELLANT

AND:

TRUSTEE COMMONWEALTH SUPERANNUATION SCHEME
FIRST RESPONDENT

COMMONWEALTH SUPERANNUATION SCHEME BOARD
SECOND RESPONDENT

JUDGE:

CONTI J

DATE:

5 APRIL 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Background circumstances

This is an appeal against the decision of the Superannuation Complaints Tribunal (‘the Tribunal’) made on 27 January 2005, whereby the Tribunal affirmed the decision of the Trustee of the Commonwealth Superannuation Scheme (‘the Trustee’ and ‘the Scheme’ respectively) to deny to the appellant a spouse’s superannuation benefit in consequence of the death of her late second husband Joseph Francis Vassallo (‘the deceased’) on 4 March 1995. That decision confirmed an earlier decision of a delegate of the CSS Board of Trustees made on 16 October 1996. It was not until 22 September 2003 that the appellant submitted to the Tribunal the form of Registration of Complaint that led to the decision of the Tribunal of 27 January 2005.
The appellant’s marriage to her first husband had been dissolved some time before her marriage to the deceased. There were two children of her first marriage. The appellant married the deceased on 7 August 1977 and that second…

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.

Continue reading Harris v Trustee Commonwealth Superannuation Scheme

Details

AGLC: Harris v Trustee Commonwealth Superannuation Scheme [2006] FCA 373
Case: [2006] FCA 373
Decision Date: 5 APRIL 2006

CaseChat Overview and Summary

The case of Harris v Trustee Commonwealth Superannuation Scheme involves the appellant, who sought to establish that she was in a marital relationship with the deceased for the purposes of claiming superannuation benefits. The appellant argued that her reliance on her husband’s payments, both financially and emotionally, constituted a marital relationship. The Tribunal, however, rejected the appellant's claim, finding that her relationship with the deceased did not meet the statutory requirements for a marital relationship under the Superannuation Act. The appellant appealed this decision to a higher court.

The primary legal issue in this case was whether the appellant had established a marital relationship with the deceased, thereby entitling her to claim superannuation benefits. This involved interpreting the statutory definition of a 'marital relationship' under sections 8A and 8B of the Superannuation Act. Specifically, the court had to determine whether the appellant and the deceased had lived together as husband and wife on a permanent and bona fide domestic basis, either for a continuous period of at least three years or for a shorter period if it could be shown that they had lived together on a permanent and bona fide domestic basis. The appellant argued that the Tribunal had misapplied the statutory test by focusing solely on financial dependence and ignoring emotional and physical dependence.

The court found that the Tribunal had correctly applied the statutory test and its reasoning was sound. The evidence did not support the appellant's claim that she and the deceased had lived together as husband and wife on a permanent and bona fide domestic basis for the requisite period. The court emphasised that the statutory test requires not just occasional cohabitation, but a continuous and permanent relationship. The Tribunal's decision, which took into account the nature and duration of the relationship, was consistent with the statutory requirements.

ORDERS:
1. The appeal be dismissed.
2. The appellant pay the respondents’ costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CONTI J

The appellant submitted further that if the appellant was effectively given two days per week leisure by her husband’s payments, such payments, and the result they provided, were capable of providing substantial dependence of the appellant on her husband. Yet by adopting a purely financial analysis of dependence, so her submissions continued, the Tribunal ignored the possibility of actual emotional and physical dependence on her husband, and did not analyse the degree of her actual dependence on her husband and upon his payments to her, nor her physical dependence on her husband’s payments to maintain her modest lifestyle. Moreover in confining its consideration to direct financial dependence only, the appellant contended that the Tribunal misdirected itself as to the proper test to be applied, and therefore applied the wrong test.Conclusions In my opinion, the decision of the Tribunal below, and the Tribunal’s reasoning in support of and leading to that decision, demonstrated a persuasive and viable application and operation of the complex statutory test as to the existence or otherwise of a ‘marital relationship’ within the scope and for the purposes of the Superannuation Act and ss 8A and 8B thereof in particular, exemplifying as that test does in subsections (1) and (2) of s 8A in particular the notion of having ‘ordinarily lived with that other person’ at a particular time, and to have done so ‘as that other person’s… wife on a permanent and bona fide domestic basis at that time…, whether or not the person was legally married to that other person’, and a consideration of the evidence inter alia as to being ‘wholly or substantially dependent on that other person’, and so being for the minimum period of time stipulated by s 8A. Thus one of the two foundations for the entitlement of a person to assert the existence of a ‘marital relationship’ with another is that the former ‘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’ a particular time for the purposes of the operation of ss 8A and 8B. The other is the alternative of having so lived ‘for a continuous period of less than 3 years up to that time’, but in circumstances constituting in the opinion of the Commissioner ‘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’. The circumstances of the appellant established by the evidence, as found by the Tribunal, fell short however of those statutory requirements essentially for the reasons postulated by the Tribunal. To the extent that living together at times or on occasions did occur, the conclusion of the Tribunal was that so much did not constitute at least the required continuity prior to the death of the deceased. That shortcoming was because such living together as did occur was not for the duration of ‘a continuous period of at least 3 years up to that time [of death]’, as required by par (a) of subs 8A(2); nor in the opinion of the Commissioner was it open to be found that the appellant ‘had been living with [the deceased] as that other person’s… wife for a continuous period of less than 3 years up to that time’, such that, ‘having regard to any relevant evidence, [the appellant] ordinarily lived with… [the deceased as his] wife on a permanent and bona fide domestic basis at that time’.

Ratio Decidendi

Legal Principle Established

Established by: CONTI J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 283 OF 2005

BETWEEN:	MAREE HARRIS APPELLANT
AND:	TRUSTEE COMMONWEALTH SUPERANNUATION SCHEME FIRST RESPONDENT COMMONWEALTH SUPERANNUATION SCHEME BOARD SECOND RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	5 APRIL 2006
WHERE MADE:	SYDNEY

JUDGE:	CONTI J
DATE:	5 APRIL 2006
PLACE:	SYDNEY