Lynn v Australian Financial Complaints Authority - [2025] FCA 175

FEDERAL COURT OF AUSTRALIA
Lynn v Australian Financial Complaints Authority [2025] FCA 175

File number: WAD 279 of 2023

Judgment of: BANKS-SMITH J

Date of judgment: 13 March 2025

Catchwords: SUPERANNUATION – death benefit – appeal from decision of trustee of superannuation fund to distribute whole of death benefit to wife of deceased member – where marriage had broken down – deceased member had made non-binding death benefit nomination naming four children and two step-children as beneficiaries – complaint brought by daughters to Australian Financial Complaints Authority – AFCA not satisfied that trustee's decision was fair and reasonable in the circumstances – AFCA upheld complaint and determined that benefit be distributed between wife and six children – appeal by wife from decision of AFCA – meaning of 'dependant' – matters to be taken into account when considering whether potential beneficiary has reasonable expectation of financial support – nature of AFCA's statutory task – whether appellant accorded procedural fairness by AFCA – no error of law on part of AFCA made out – appeal dismissed

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Corporations Act 2001 (Cth) ss 761A, 1053-1058, Part 7.10A

Family Law Act 1975 (Cth) s 121

Superannuation Industry (Supervision) Act 1993 (Cth)

Cases cited:
Ascic v Comcare [2020] FCAFC 105

BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FCA 865

Brown v Repatriation Commission (1985) 7 FCR 302

Bullivant v Australian Meat Industry Superannuation Pty Ltd [2018] FCA 1588

Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

ISG Financial Services Ltd v Australian Financial Complaints Authority Ltd; ANLP Pty Ltd atf AP Superannuation Fund v ISG Financial Services Ltd (No 2) [2022] QSC 281; (2022) 12 QR 639

MetLife Insurance Limited v Australian Financial Complaints Authority (No 3) [2022] FCA 849

Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209

MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912

Notesco Pty Ltd v Australian Financial Complaints Authority Ltd [2022] NSWSC 285

Ogawa v Australian Information Commissioner [2014] FCA 229

Phillips v Commissioner for Superannuation [2005] FCAFC 2

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2020) 275 CLR 582

QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55; (2020) 276 FCR 97

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

Resolution LifeAustralasia Limited v Mitchell [2024] FCA 310

Rushton v Commonwealth Superannuation Corporation (No 3) [2021] FCA 358

Servos v Repatriation Commission (1995) 56 FCR 377

Wan v BT Funds Management Limited [2022] FCA 302

Waterford v Commonwealth (1987) 163 CLR 54

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 173

Date of last submissions: 3 February 2025

Date of hearing: 10 December 2024

Counsel for the Applicant: The applicant appeared in person

Counsel for the First Respondent: Ms H Hofmann

Solicitor for the First Respondent: Becketts Lawyers

Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs

Counsel for the Third to Eighth Respondents: The third to eighth respondents did not appear

ORDERS

WAD 279 of 2023

BETWEEN:
CONSUELLA LYNN

Applicant

AND:
AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY

First Respondent

AUSTRALIAN SUPER PTY LTD

Second Respondent

TYE HAPA-MAREE MCKAIN

Third Respondent

BEN DAVID MCKAIN
Fourth Respondent

CHRISTINA KARIN BARNES
Fifth Respondent

SARAH ELISABET LYNN
Sixth Respondent

BETHANY KATARINA MICHELLE LECOULTRE
Seventh Respondent

KATE ASTRID LYNN
Eighth Respondent

ORDER MADE BY:

BANKS-SMITH J

DATE OF ORDER:

13 MARCH 2025

THE COURT ORDERS THAT:
1.The applicant's application to rely on fresh evidence on the appeal is refused.
2.Appeal dismissed.
3.The parties are to confer as to costs and provide a joint minute of proposed orders within 14 days, failing which orders will be made as to costs, including referring issues of quantum for determination by a registrar of this Court.

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

REASONS FOR JUDGMENT
BANKS-SMITH J:

The applicant, Ms Consuella Lynn, appeals from a decision of the first respondent, the Australian Financial Complaints Authority (AFCA).
AFCA was empowered to determine a complaint relating to the distribution of a superannuation death benefit payable by the second respondent (AustralianSuper Pty Ltd, which I will generally refer to as the trustee), arising from the death of the late Mr Richard Lynn. Mr Lynn was a member of the AustralianSuper fund.
At the time of Mr Lynn's death, he and Ms Lynn were legally married, although Family Court proceedings had been commenced, followed by an apparent reconciliation, followed by the issue by each against the other of a family violence restraining order (FVRO).
Mr Lynn had four daughters (Christina, Sarah, Bethany and Kate). He also had two stepsons, being Ms Lynn's sons (Tye and Ben). The six children are all adults. They have been joined to this appeal as the third to eighth respondents and each has indicated to the Court that they do not wish to be heard on the appeal. In these reasons I will refer to them by their first names, consistent with the convention of the parties, and for convenience. No disrespect is intended by this approach.
In short, the trustee (as trustee of the relevant superannuation fund) made a final decision to distribute the benefit wholly to Ms Lynn. Christina (the fifth respondent) filed a complaint about that decision with AFCA.
On 11 October 2023 AFCA determined the complaint, deciding that Ms Lynn should receive 50% of the benefit, with the other 50% divided between the six children (Determination). The total amount in issue is some $171,301, together with accrued interest.
Ms Lynn appeals from the Determination, and the hearing proceeded on the basis that leave was granted to Ms Lynn to amend her notice of appeal to the effect that the relief sought was that the Court substitute a decision that affirms the decision of the trustee.
The rationale for AFCA's decision was that whilst Ms Lynn and all six children were dependants within the meaning of the relevant provisions, only Ms Lynn had any relevant financial dependency. However, the period of any reasonable expectation of such financial dependency was limited. Taking into account this limited financial dependency, the absence of other financial dependants and indications by Mr Lynn as to the manner in which he wished to have the benefit distributed, it determined that the trustee's decision was not fair and reasonable and that instead each of Ms Lynn and the six children should share in the benefit in the manner assessed.
For the reasons that follow, I have decided that Ms Lynn's appeal is to be dismissed.
Role of AFCA on the appeal
AFCA participated in the appeal by providing submissions primarily limited to the nature of its powers and procedures, but also addressing in a limited fashion the (amended) grounds relied upon by Ms Lynn. Cognisant of Ms Lynn's position as a litigant in person, AFCA also assisted with the preparation of appeal books and a book of authorities, and has ensured that relevant documents that were before it at the time of its Determination were provided to the Court.
It is unusual that a tribunal or body such as AFCA would present submissions in an appeal from its own decision. In this regard, AFCA expressly noted the observations of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35‑36:
If a tribunal becomes a protagonist in this Court there is the risk that by doing so it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.
Although there has been some dispute as to the application of certain aspects of Hardiman to AFCA (see Dalton J in ISG Financial Services Ltd v Australian Financial Complaints Authority Ltd; ANLP Pty Ltd atf AP Superannuation Fund v ISG Financial Services Ltd (No 2) [2022] QSC 281; (2022) 12 QR 639 at [9]-[14]), those aspects are not currently relevant to this appeal. In any event, Hardiman does not exclude a tribunal from presenting submissions in an appropriate case. The authorities indicate a level of flexibility is appropriate. Relevantly, there is authority for the view that where there is no person present before the Court who can otherwise address the legality of the relevant decision-making respondent (in addressing the public interest in determining the legality of that decision-making) it is desirable that submissions be entertained from the respondent in assisting the Court to determine the legality of the decision-making under challenge: Ogawa v Australian Information Commissioner [2014] FCA 229 at [25] (Greenwood J); and MetLife Insurance Limited v Australian Financial Complaints Authority (No 3) [2022] FCA 849 at [12]-[14] (Colvin J).
In circumstances where there is no contradictor, I consider it appropriate to have regard to AFCA's submissions, which in my view were appropriately measured.
Nature of appeal – 'on a question of law'
Section 1057(1) of the Corporations Act 2001 (Cth) 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.
This mirrors the right of appeal to this Court available from decisions of the (former) Administrative Appeals Tribunal. By analogy with the authorities that addressed s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), it can be said that although characterised as an appeal, the proceeding is an application to this Court exercising its original jurisdiction: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 410, 422; Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 at 212‑219; and Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [11]‑[12].
The subject matter and scope of the proceeding is limited to questions of law and does not extend to a re-hearing of the whole matter: Brown v Repatriation Commission (1985) 7 FCR 302 at 305; and Ascic v Comcare [2020] FCAFC 105 at [23].
However, where the Court has jurisdiction to hear an appeal from a tribunal or other decision-maker on a question of law, the Court has jurisdiction to decide whether or not the appeal is on a question of law and that question is to be approached as a matter of substance rather than form: Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [62].
These principles have been referred to and applied in the context of a determination by AFCA in, for example, Resolution LifeAustralasia Limited v Mitchell [2024] FCA 310 at [96] (Wigney J).
The regulatory framework
The role and powers of AFCA
Division 3 of Part 7.10A of the Corporations Act (s 1053‑s 1058) addresses complaints under the ACFA scheme relating to superannuation. The ACFA scheme (defined in s 761A) is an external dispute resolution process, authorised under Part 7.10A of the Corporations Act. It was established by way of amendments to the Corporations Act in 2018 designed to provide a 'one stop shop' for external resolution of disputes about financial products and services.
A detailed description of the statutory basis for and role of ACFA can be found in a number of cases, including QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55; (2020) 276 FCR 97 at [13]-[17]; and Notesco Pty Ltd v Australian Financial Complaints Authority Ltd [2022] NSWSC 285 at [4]-[8] (Rees J). I respectfully adopt those descriptions and so provide a summarised version of the relevant provisions and principles.
Section 1053 of the Corporations Act lists the type of complaints relating to superannuation that can be made under the AFCA scheme. Relevantly, s 1053(1)(j) provides for a complaint that 'a decision by a death benefit decision-maker relating to the payment of a death benefit is or was unfair or unreasonable'.
Section 1055(1) addresses AFCA's powers in making a determination. Relevantly, it provides that AFCA has all the powers, obligations and discretions conferred upon the person who made the initial decision to which the complaint relates: s 1055(1)(a). As in this case, the initial decision-maker will generally be the trustee of the relevant superannuation trust deed.
In Resolution Life Wigney J identified useful authorities that explain the nature of AFCA's power under this provision:
[52]In QSuper Board v Australian Financial Complaints Authority Ltd and Another (2020) 276 FCR 97; [2020] FCAFC 55, the Full Court observed (at [155]) that AFCA's 'power to intervene' was concerned with 'whether there existed any unfairness or unreasonableness' in the decision which was the subject of the complaint 'in its operation in relation to the complainant' and that AFCA 'is not concerned with the legality or veracity of the exercise of power by the trustee (or, in some cases, by the insurer), but only with the manner in which the decision operates'. The Full Court went on to state (at [157]):
… AFCA may make decisions or form opinions as to the application of various statutory provisions and the rights of the parties inter se under the fund's trust deed. But such decisions or opinions are merely steps in the determination of whether the operation of the trustee's decision is fair and reasonable. Alternatively put, AFCA's opinions about those matters are 'a step in arriving at the ultimate conclusions … intended to regulate the future rights of the parties'.
(Citations omitted)
[53]In Sharma v H.E.S.T. Australia Ltd (2022) 159 ACSR 635; [2022] FCA 536 at [35], McElwaine J referred to a party's right of appeal to this Court on a question of law pursuant to s 1057 of the Corporations Act and stated:
It follows that if in determining a superannuation complaint, AFCA materially misdirects itself as to the legal rights or obligations of the parties in order to found the statutorily required state of satisfaction (that a decision in its operation in relation to the complainant was fair and reasonable in all of the circumstances), the determination is reviewable for legal error: Craig v South Australia (1995) 184 CLR 169 at 179.
[54]The first instance decision in Sharma was overturned on appeal (AIA Australia Ltd v Sharma (2023) 408 ALR 490; [2023] FCAFC 42), though no issue was taken in respect of McElwaine J's statement of principle at [35].
Further, AFCA submitted that by reference to the principles that apply generally to a statutory scheme that requires a decision-maker to reach a state of satisfaction as part of its discretionary powers, AFCA is required to 'read, identify, understand and evaluate the representations' and 'must have regard to what is said in the representations, bring [its] mind to bear upon the facts stated in them and the arguments and opinions put forward': Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2020) 275 CLR 582 at [22]-[24] (Kiefel CJ, Keane, Gordon and Steward JJ); QSuper at [200].
The hearing by AFCA is de novo: Rushton v Commonwealth Superannuation Corporation (No 3) [2021] FCA 358 at [50].
If satisfied that the decision relating to the payment of a death benefit is fair and reasonable, AFCA must affirm that decision: s 1055(3). Conversely, if satisfied that the decision is unfair or unreasonable, AFCA may take a number of actions for the purpose of placing the complainant and any joined parties as nearly as practicable in such a position that the unfairness or unreasonableness no longer exists: s 1055(5). Those actions include varying or setting aside the decision, or remitting it for reconsideration: s 1055(6).
AFCA's powers to make a determination are not judicial in nature. So much was confirmed in QSuper at [184]:
AFCA's powers to make a decision which removes any unfairness or unreasonableness in the operation of a decision in relation to a complainant or in the conduct of the trustee are not judicial in nature. The process required by s 1055 is not to adjudicate upon existing legal rights and make orders to remediate for any breach which is detected. All that the section requires, in cases such as the present, is to consider the operative effect of a trustee's decisions in relation to a member and determine whether it operates 'unfairly or unreasonably or both' in relation to the member. If it reaches the conclusion that it does it will create new rights as between the parties for the purpose of removing the unfairness or unreasonableness. That is not a judicial process involving the determination of legal norms and protection of legal rights and is a process more aptly conferred on a non-judicial body: Breckler (at 130 [90] per Kirby J).
However, AFCA must not make a determination that is contrary to law or the rules of the relevant superannuation fund or policy: s 1055(7).
The AFCA Rules
Further, the determination of superannuation complaints submitted to AFCA is governed by its Complaints Resolution Scheme Rules (Rules). The Rules are said to form part of a contract between AFCA, 'Financial Firms' and complainants: rule A.1.2 and see generally Notesco at [9]‑[10].
The expression 'Financial Firms' includes, where the complaint is a superannuation complaint, a person whose decision is referred to in s 1053 of the Corporations Act (and so includes a death benefit decision-maker).
Rule A.8.1 relevantly provides that AFCA will generally try to resolve a complaint by informal methods, including by conducting a conciliation conference and providing a 'preliminary assessment' in accordance with rule A.12. Rule A.12.1 provides as follows:
After collecting relevant information and obtaining submissions from the parties to a complaint, AFCA may choose to provide the parties with a preliminary assessment of the complaint. AFCA's preliminary assessment will set out reasons for any conclusions made about the merits of the complaint and will provide a recommendation as to how the complaint should be resolved.
Rule A.10.1 provides that AFCA will generally share information provided by a party to a complaint with the other parties to the complaint. However, rule A.10.4 provides that AFCA need not provide a party with access to relevant information, if the party that provided the information does not consent to the information being shared with the other party and tells AFCA this when they provide the information. If the information is not shared, AFCA cannot rely upon it when reaching a decision about the merits of the complaint, unless special circumstances apply.
Rule A.12.2 provides that AFCA must inform the parties to the complaint that they can either accept the preliminary assessment or request a determination.
Rule A.12.3 provides that the complaint must proceed to a determination if, among other things, a complainant requests that the complaint proceeds to a determination and provides reasons for disagreeing with the preliminary assessment within the time specified by AFCA.

Rules A.14.1 and A.14.2 provide that the AFCA decision-maker must, among other things, apply the approach specified in s 1055 of the Corporations Act and do what the decision-maker considers is fair in all the circumstances having regard to legal principles.
Rule A.15.3 provides relevantly that a determination by an AFCA decision-maker in respect of a complaint is final and is binding upon the parties if accepted by the complainant within 30 days of the complainant's receipt of the determination.
Expressed generally, the Rules provide that decision-makers are not bound by the rules of evidence (rule A.14.3). They emphasise the informal nature of the dispute resolution process and require that complaints be considered in a manner which provides procedural fairness to the parties (rule A.2.1(c)(ii) and (iv)).
As to AFCA's obligation to accord procedural fairness, as noted the Rules provide that AFCA will generally share information provided by a party with the other parties in the complaint. AFCA will provide the parties with access to relevant information and with an opportunity to make submissions (rule A.10). AFCA has power to require a person to provide to it, in writing, information that is relevant to a complaint (rule A.9 and s 1054A of the Corporations Act). However, AFCA does not have the power to conduct a hearing (other than a conciliation conference, as provided by s 1054B). Nor can it compel the attendance of a witness.
AFCA guidelines
AFCA has also published a series of documents that are said to explain for the benefit of consumers the legal requirements and its approach to reaching decisions. Relevantly, it has published guidelines entitled 'The AFCA Approach to superannuation death benefit complaints'.
Those guidelines inform consumers about the substance of the Rules, but also provide commentary in narrative form that may assist a consumer who is considering what evidence or submissions they might present to AFCA. Although somewhat lengthy, I extract some of the relevant guidelines below as they indicate that parties have access to useful information about the kind of matters relevant to a decision. For example, the guidelines state:
Purpose of superannuation death benefits
When a trustee makes a discretionary decision, it must make its decision consistently with the purpose behind the discretion.
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.
Who relied on the member for financial support?
Anyone who was being financially supported by the deceased member just before the member died would generally have high priority in the allocation of a death benefit. This may include a surviving partner, minor children and any adult children who were receiving ongoing and regular financial support from the member with an expectation for it to continue.
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.
The member's wishes
Even where a nomination is preferred and non-binding, the trustee would generally take the nomination into account as an indication of the member's wishes. The weight given to a non-binding nomination may depend on when it was made and whether the member's family circumstances have changed since it was made. For example, if a member nominated his or her spouse at the time of joining the fund but the parties had since separated and the member was in a marriage-like relationship with someone else, the member's nomination would be of little assistance as a guide to the member's wishes.
The trustee must also consider whether the person nominated is someone who can be paid a death benefit under superannuation law and the fund rules. For example, if the member nominated his or her parents, but the member and the parents were financially independent and the member had a child, the member's nomination could not be taken into account.
Another indication of the member's wishes may be a recent Will. While a superannuation death benefit does not form part of a deceased estate (unless the fund rules require the death benefit to be paid to the estate, the trustee decides to distribute the benefit to the estate or there is a valid binding nomination to pay the estate), a member's Will may nevertheless set out the member's intentions with respect to his or her superannuation. However, a Will is only a guide because a superannuation death benefit must be distributed consistently with the purpose of superannuation, while a member's estate is not subject to this limitation.
The Trust Deed and SIS Act
In short, superannuation law does not permit a superannuation death benefit to be paid to someone who is not a dependant or a legal personal representative (LPR), unless there are no dependants or LPR.
The initial decision-maker in this case was the trustee, who was obliged to act in accordance with the terms of the AustralianSuper Trust Deed and the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act).
Leaving aside provisions that are not applicable in this case (for example, where there might be a binding death benefit form and notice) the trustee was obliged under rule 24.8(3) of the Trust Deed to pay a death benefit:
… to one or more of the following persons which may be to any exclusion of the other and in such manner and proportions as the Trustee determines, namely -
(a)to the Member's dependants;
(b)to his or her legal personal representative; and
(c)to any other person to whom payment of the Benefit is permitted under the Relevant Requirements.
(emphasis added)
Under rule 24.9 of the Trust Deed, the trustee in making a determination under rule 24.8(3) was entitled to take into account the terms of any non-binding death benefit nomination provided by the deceased member.
In ascertaining who are 'dependants', the trustee was obliged to consider the definition provisions of the Trust Deed and the SIS Act.
Rule 2.2 of the Trust Deed includes the following definitions:
(18)'Child', in relation to a Member or a former Member, has the meaning given to it in section 10 of the SIS Act:
(22)'dependant', in relation to a Member or former Member, means-
(a)a Spouse or the Member or former Member; or
(b)a Child of the Member or former Member; or
(c)any person, whether or not related to the Member or former Member by blood or marriage, who, in the opinion of the Trustee, is or was wholly or partially dependent on the Member or former Member at the time if the Member's death or of any other event in respect of which an entitlement to a Benefit may arise; or
(d)any person who, in the opinion of the Trustee, is or was a 'dependant' of the Member at the date of the Member's death within the meaning of that term in section 10 of the SIS Act;
(74)'Spouse' in relation to a Member or former Member, has the meaning given to it in section 10 of the SIS Act.
By those definitions of 'child' and 'spouse', the trustee is directed to the SIS Act.
'Spouse' is defined in s 10 of the SIS Act to include another person who is legally married to the person or who is living with the person in a genuine domestic basis as a couple.
'Child' is defined to include a step-child, an adopted child and a child within the meaning of the Family Law Act 1975 (Cth).
Background facts
Before turning to the various decisions that led to and include the Determination, I note some relevant background facts.
On 1 November 2006 Mr Lynn's former superannuation fund (which he joined on 1 June 2006) became part of the AustralianSuper trust fund.
On 8 September 2007 Mr Lynn and Ms Lynn were married.
On 2 February 2018 Mr Lynn made a non-binding death benefit nomination. It provided that Sarah and Kate were to receive 16% of the benefit each, and Tye, Ben, Christina and Bethany were to receive 17% each.
On 8 March 2019 Mr Lynn executed a will leaving his estate to Ms Lynn.
On 19 August 2020 consent orders were made by the Family Court, reciting that the parties had separated on 5 June 2020 and encompassing a property and financial settlement.
On 11 March 2021 Mr and Mrs Lynn signed a minute of consent orders to discharge the orders made 19 August 2020. The orders were made by the Family Court of Western Australia on 16 April 2021.
On 10 December 2021 Mr Lynn obtained an interim FVRO against Ms Lynn valid until March 2022.
On 12 December 2021 Mr Lynn asked his lawyer by email to prepare a new will with his four daughters as equal beneficiaries.
On 30 December 2021 Ms Lynn obtained an interim FVRO against Mr Lynn. That same day police officers attended Mr Lynn's residence to serve the interim FVRO and found him deceased inside the house. The coroner reported that Mr Lynn died of natural causes.
On 10 February 2022 Kate (the youngest daughter, who had received certain payments from her father prior to his death) graduated from university.
Trustee's initial decision
On 9 September 2022 the trustee notified the relevant parties of its decision to pay the entire benefit to Mr Lynn's LPR.
On 9 September 2022 Ms Lynn notified the trustee that she objected to the trustee's decision, seeking payment of the benefit to herself.
On 4 November 2022 Christina notified the trustee that she objected to the trustee's decision, seeking payment of the benefit in equal shares to Mr Lynn's four daughters.
Trustee's amended decision
On 5 December 2022 the trustee notified the relevant potential beneficiaries that it had amended its decision and would pay the entire benefit to Ms Lynn, rather than the LPR. It gave the following reasons:
The evidence provided is somewhat inconsistent to the views of the various parties. We acknowledge the 'email' Will document and family violence order dated in December 2021 is indicative of the deceased and Consuella being separated at the time of the deceased passing.
However, the other information provided including bank statements, death certificate, marriage certificate and declared consent orders support Consuella was the deceased legal spouse at the date of his passing and she was financially dependant on the deceased to support the joint mortgages and property cost in which they held together. This is that Consuella could have reasonably expected that financial support to maintain these properties including the mortgages would have continued had the deceased not passed.
We also acknowledge that the deceased was supporting Kate Lynn financially by way of $500 cash per month for a period of 6 months. We are of the view that these payments do not adequately support that Kate was financially dependant on the deceased as the payments do not support an ongoing period of financial reliance and that the payments were to stop after a set period of time.
These payments are considered a gift and not ongoing financial support which was expected to continue. As such we believe the evidence supports Kate Lynn, Christina Barnes, Sarah Lynn, Bethany Le Coultre not to meet the definition of being a financial dependant or interdependent to the deceased at his time of death.
The Trustee's decision is based on the evidence presented and it is satisfied that as Consuella Lynn was the deceased member's lawful spouse at the time of his death, has provided evidence of her financial dependence, and as such is the higher claimant.
On 5 December 2022 the daughters lodged an objection with the trustee to the amended decision.
An objection is lodged with AFCA but deferred
On 19 December 2022 Sarah lodged a complaint by email with AFCA. Relevantly the email stated:
I would like the decision made by Australian Super reviewed as I believe that it is not in line with my fathers wishes.
The decision made that the benefit will be paid to his estranged wife, whom he had a family violence restraining order in place protecting him from, is not what he would have wanted.
My opinion is supported by the fact that my father had in place a death benefit nomination, nominating his children and step children.
The decision by Australian Super is not just in line with what my father wanted and the benefit being paid to his abuser is an injustice that I strongly reject and wish to have reviewed by a third party.
On 19 December 2022 Christina lodged a complaint with AFCA (on behalf of her and her three sisters). Christina said that Mr Lynn had been estranged from Ms Lynn at the time of his death and had commenced divorce proceedings. Relevantly, the complaint stated:
My Father Richard John William Lynn DOB 11/01/1969 was found deceased on the 30th December 2021. Australian Superannuation hold a non-binding nomination under policy number 710072650. The policy names myself - Christina Barnes and my three sisters Sarah Lynn, Bethany LeCoultre and Kate Lynn as beneficiaries. It also has named his step children Ben McKain and Tye McKain. The decision has been made by Australian Super to award 100% of the funds to my late fathers (Richard Lynn's) ex-partner Consuela Lynn.
My fathers relationship with Consuela had recently broken down after years of marriage troubles. My father feared for his safety and was successful in gaining a Violence Restraining Order against Consuela Lynn on 12th December 2021. The same day he sent an email to his solicitor changing his will, this change made myself and my three sisters (named above) the sole beneficiaries of his Will. My father had engaged a divorce lawyer, Romana Simic from Armstrong Legal and began proceedings to divorce Consuela in late 2021. They were living separately, my father residing at their jointly owned house in Banksia Grove and Consuella residing at their jointly owned farm in Gin Gin. Myself and my sisters had not had a relationship with Consuela for 6 years.
For fairness and transparency when we became aware of my fathers Australian Super benefit we went above and beyond and found Consuela's contact details and gave them to Australian Super so that her children could be paid what they were entitled to. Instead what happened is Consuela objected to the initial decision (letter attached) for funds to be paid to the executor of the will. The second decision (letter attached) made was to award Consuela 100% of the benefits due to her dependant relationship on my father. The change in circumstances shortly prior to my father's death (cause yet to be determined) on 30th December 2021.
We feel that the change in circumstances have not been considered and that the obvious change in my late father's wishes have not been honoured. We understand they jointly owned property however Consuella has naturally inherited this (and all of the equity) due to my father passing prior to the divorce being finalised. I don't believe she should inherit to death insurance to pay for this as she can sell the property for a profit if she cannot afford the repayments.
My youngest sister Kate Lynn had been receiving money on a monthly basis from my late father which was also not given any merit although it was ongoing, it has been deemed by Australian Super as a gift.
…
It appears that at some point in January 2023 AFCA closed this complaint on the basis that the trustee had yet to make a final decision.
Trustee's final decision
On 1 February 2023 the trustee notified the parties that its amended decision of 5 December 2022 was maintained. This was therefore its final decision.
As a result, Christina wrote to AFCA reopening her complaint. All sisters separately supported her complaint by emails to AFCA.
AFCA's complaint process
On 9 February 2023 AFCA wrote to Christina confirming lodgement of her complaint and requesting any supporting information, including evidence of dependency. AFCA also requested information from the trustee.
On 15 February 2023, Sarah sent AFCA documents in support of her complaint.
The trustee notified Ms Lynn on 15 February 2023 that AFCA had received a complaint about its decision to pay Ms Lynn the entire benefit. On the same day Ms Lynn wrote to AFCA requesting that the trustee's decision not be disturbed.
On 9 March 2023 the trustee responded to AFCA, answering its queries and stating, relevantly:
…
The Trustee requested additional information from the parties to assist with its review of the objections. The Trustee acknowledges that the email Will document, and family violence order dated December 2021 indicates that the late Richard Lynn and Consuella Lynn were separated at the time of his passing however, Consuella provided bank statements, marriage certificate and consent orders that support she was the legal spouse at the date of passing. As such, it was evident that Consuella Lynn was financially dependent on the late Richard Lynn to support the joint mortgages the two shared and various property costs.
Kate Lynn confirmed by email that she was financially dependent on the late Richard Lynn for a sum of $500 per month, for a period of six months. The Trustee determined that given there was an end date of a six-month period, it does not evidence that Kate Lynn was financially dependent on the late Richard Lynn, as the financial support had an end date and was not ongoing.
Based on the information provided, the Trustee determined that the four adult children were not financially dependent on the late Richard Lynn and amended the decision to pay 100% of the benefit to Consuella Lynn as lawful spouse. All parties were notified of the amended decision by letter sent by email dated 5 December 2022.
Further objections were lodged by Christina Barnes, on behalf of Bethany Lecoulter, Sarah Lynn and Kate Lynn with no new information and, a separate objection lodged by Kate Lynn, advising that the late Richard Lynn was in the middle of applying for a divorce prior to his passing. Kate also noted that they were going to mediation for the estate, to take place in February 2023.
The Trustee maintained its decision to pay 100% of the benefit to Consuella Lynn as lawful spouse at the time of passing. The purpose of a death benefit is primarily to provide for those people who were financially reliant on the late member on or around the date of passing, who may have expected continuing financial support had it not been for their passing. It is evident that Consuella Lynn was financially dependant on the late Richard Lynn therefore, the Trustee believes the decision is fair and reasonable.
On 9 March 2023 AFCA invited Ms Lynn to provide information as to the outcome sought.
On the same day Christina wrote to AFCA providing information and documents in support of the complaint.
On about 5 May 2023 AFCA wrote to the trustee and the parties requesting any update or supporting information.
The trustee responded sometime in May (its letter is incorrectly dated March), confirming its position remained unchanged.
On 20 May 2023 Sarah replied to AFCA (with attachments) contending that Ms Lynn should not have expected ongoing financial support from Mr Lynn for a number of reasons:
Please see the attached documents to support Christina, Bethany, Kate and my claim and evidence of the breakdown of the relationship between Richard and Consuela:
•   Restraining Order
•   Emailed Will
•   Affidavit written by me on 15/02/23
•   A video Consuela posted to Facebook on 14/12/21 where she refers multiple times to Richard as her ex-husband …
•   A word document with a transcript extract of the part of the video that is relevant
I believe that the above documentation supports our claim that, contrary to the Australian Super decision, Consuela could not expect ongoing financial support from Richard into retirement, but for his death.
I have read the Australian Super position and do not agree with their decision to override the beneficiary nomination based on ongoing financial obligations that Consuela will be responsible for paying. Below is my understanding of joint financial obligations that they had:
• Ricon Pty Ltd (Cowalla Avocado Farm). As per the trust deed that has been provided, previously both Richard and Consuela were Directors of the Self-Managed Super Fund held in the name Ricon Pty Ltd. The liquidation process of the farm was already underway prior to when my father died. That asset is currently being managed by RSM, they are now the directors of Ricon Pty Ltd and are overseeing its liquidation. Therefore, I believe that Consuela LYNN is no longer the director of the SMSF and is not responsible for any ongoing payments.
• 29 Kurrajong Blvd, Banksia Grove. Based on the mortgage evidence provided by Consuela I have used a mortgage calculator and this calculated that this mortgage would cost about $160 per week. It is my understanding, based on conversations with Richard, that the mortgage was previously paid off in its entirety. I would like to see further proof of when the property was refinanced (was this prior to or after Richard's passing), who facilitated the refinance and what those funds were used for to be satisfied that this is a legitimate mortgage that they both owed and it hasn't been refinanced by Consuela for her personal use of the funds. This aside, I do not think it is fair for the death benefit to be paid to Consuela based on a weekly payment of $160.

On 21 May 2023 Kate replied to AFCA contending that she was financially dependent on Mr Lynn:
I have filled out and attached the statement of financial dependency to this email. I would like to highlight I was a full time university student. Dad's financial assistance kept me afloat and without his monthly payments I would not have been able to afford to continue university. In 2021 I was studying full time on top of completing 29 weeks of unpaid physiotherapy university placements Monday to Friday 8am - 4pm. This meant I was unable to work and the $614 a fortnight from Centrelink was not enough to cover rent, fuel, bills and daily living expenses. Dad was very generous and would also help me out on top of these monthly payments by giving me extra cash for bigger bills and uniforms I needed for my placements, paying for my groceries and taking me out for lunches/dinners.
Please see the bank statements that include the $500 monthly payments, $5,000 to purchase me a car, $2,672 for my surgery, $194 for my medical bills, along with a few other payments to help me out. Please note that the $500 monthly was via bank transfer or cash depending on when we were seeing each other. Sometimes the $500 was split between 2 transfers eg. $200 then $300 a few days later.
On 24 May 2023 Bethany replied to AFCA providing further information in support of the complaint.
On 25 May 2023 Christina provided further information to AFCA as follows:
My Fathers wishes were that the death benefit as per the non-binding nomination that the benefits would be split equally between all 6 children (step and biological). We have honoured his wishes by giving Consuella and her children's contact details to Australian Super in order to be fair. There was no obligation to do this and given that we had no relationship with Consuella and her children we could have bypassed this process. We chose to do what we felt was right and in turn Consuella has made an application as a financial dependant. We know that the finl decision made by Aus Super is not honouring my fathers wishes.
Consuella was not living at the property in Banksia Grove that her and my father jointly owned, and my father was essentially renting her half of the property from her until the divorce was finalised. Now that Consuela has inherited this property she has financially benefited and can either lease the property for a substantial profit or live there well below market value (estimated $160 per week). I have not seen evidence that Consuella was legitimately financially dependant on my father at the time of his death.
Ethically it is not right that someone who feared for their safety and needed to go as far as to get a Violence Restraining Order put in place to protect themselves should then have their wishes over looked and the insurance that was put in place to support their children granted to this person. Children regardless of age are recognised as dependants.
A conciliation call between the parties was scheduled by AFCA for 16 June 2023. That call was subsequently cancelled on 6 June 2023.
On 27 June 2023 and 5 July 2023 Kate provided AFCA with further information regarding payments she received from Mr Lynn, including a screenshot of the last payment received from Mr Lynn on 30 April 2021.
Between 26 July 2023 and 7 August 2023 communications were exchanged between AFCA and Tye about Kate's potential financial dependency. Tye asked to submit further information regarding the financial dependency of himself and Ben. AFCA advised that it would consider all information provided to it before it completed writing its preliminary view.
Recommendation from AFCA
AFCA distributed its recommendation as anticipated by Rule A.12.1 on 14 August 2023. The recommendation was that $3000 be paid to Kate and the balance of the benefit be paid to Ms Lynn. It relevantly stated:
[Ms Lynn] was financially dependent on the deceased member. As discussed above, I am satisfied that CL meets the definition of dependant. There are conflicting statements by the complainant and CL in relation to whether CL and the deceased member were still living together. I do not give weight to either statement because as previously discussed, I believe the personal relationship between CL and the deceased member was at an end. Despite that, evidence shows CL was financially dependent on the deceased member at the date of his death. There is no dispute that CL and the deceased member owned a property together. The joint home loan statements show an outstanding balance of $113,108 as at 31 December 2021. This is because while the loan was paid off in August 2021, it was re-financed in September 2021. In her response to AFCA, SL questions the legitimacy of the mortgage and asks for proof that the deceased member made the re-finance. I appreciate her concerns. However, the statement shows on 8 September 2021, the deceased member withdrew $14,000 from the account after the mortgage was paid off. The statement also shows the deceased member was solely paying the monthly instalment for the loan. As such, I am satisfied the available evidence is sufficient to prove the legitimacy of the mortgage.
In the letter to the potential beneficiaries that accompanied the recommendation AFCA stated:
If you wish to reject the recommendation and request we issue a determination, you must write to me within 30 days and:
1. Set out your reasons for rejecting the recommendation
2. Provide any new and relevant information.
…
If you reject the recommendation, and there is no new information, then a determination will be issued based on the information already on file.
The Ombudsman will review all of the evidence on the file and make their own decision.
Rejection of the recommendation
Between 14 and 16 August 2023 a number of emails passed between Tye, Ms Lynn and AFCA.
On 14 August 2023 Ms Lynn wrote to AFCA by way of separate emails apparently providing further documents but stating that:
As this information is sensitive I wanted to discuss it with you as I may not share all of it or any of it with the other parties as they have committed criminal actions. I would suggest seeking advice from your criminal investigation department at AFCA.
…
This is a formal request for investigation of breach of AFCA rules, and criminal activity.
On 15 August 2023 Tye emailed AFCA attaching a large number of attachments, including copies of the complaint letter that Ms Lynn had indicated she wanted to discuss with AFCA, a copy of a Supreme Court writ relating to Mr Lynn's will and a without prejudice letter sent by a lawyer on behalf of the daughters. Tye, on behalf of Ms Lynn and Ben, noted they agreed with the outcome but were rejecting the recommendation 'to escalate an outcome because the complainant has threatened to cause delays', and requested expedition with an ombudsman to make a determination urgently. At that time Tye stated he, Ben and Ms Lynn did 'not have any further information to provide'.
Tye and Ms Lynn made allegations in their communications with AFCA to the effect that Christina and 'other parties' had committed criminal acts such as extorting money from Ms Lynn by threatening to delay the AFCA determination.
On 16 August 2023 AFCA wrote to Ms Lynn enclosing copies of the correspondence from Tye. The letter stated that as Tye had rejected the recommendation, the complaint would progress to the final stage and an ombudsman would issue a final decision 'called a determination'. Importantly, the letter also stated:
If you consider [Tye] has provided new evidence that you need to address or if there is anything else you wish to add at this stage, please provide it to us within seven days.
This may be the last opportunity to give us additional information. If we do not receive a response from you by 23 August 2023, we will assume that no further submission will be made.
We will consider all of the information provided when making our final decision.
On 23 August 2023 Tye provided further information to AFCA in relation to his 'financial hardship' but asked that the information be kept from the other parties.
Tye sought an update from AFCA on 4 September 2023.
On 11 September 2023 AFCA informed Tye that his request to expedite the case had been approved and it would be allocated to the next available ombudsman.
On 14 September 2023 Kate provided additional evidence to AFCA, said to be 'regarding [her] father's plans to divorce [Ms Lynn] on top of the family violence restraining order he had against her'. The evidence was a screenshot of text messages with Mr Lynn. According to the screenshot, on 10 December 2021 Mr Lynn texted Kate that he got a 'VRO today against [Ms Lynn]' in the form of an interim order valid until March 2022 by which time he hoped 'to have everything sorted out'. Further correspondence between Mr Lynn and third parties was attached. This included email correspondence between Mr Lynn and a third party outlining behaviour exhibited by Ms Lynn between March 2021 and October 2021. Also attached was email correspondence between Mr Lynn and his lawyer requesting his will be immediately amended to give his entire estate to his four daughters in equal share, revoking all former wills.
On 15 September 2023 AFCA wrote to Ms Lynn and provided copies of the information received from Kate. AFCA requested Ms Lynn write within seven days if Kate had provided new evidence that Ms Lynn wished to address. A similar letter was sent to Tye.
On the same date it appears that Mr Lai of AFCA spoke to Ms Lynn. The case note records (unedited):
Consuella says she is concern with the info provided by Kate because this info is in deceased's private email & was not supposed to be shared.
Advised Consuella again that we are not the authority. If she believes that the other party has breached any legal requirement/restriction, she need to refer it to the appropriate auth.
If she is able to provide any legal injuction that direct the info is not supposed to be share, then the Omb may consider whether they can rely on it
Advised as the complaint is waiting on a decision by the [ombudsman], any info provided before a decision is made will be considered.
Consuella says she have more info to send me in respond to this.
Ack & advised that as per pro-fair, I will exchange them to the other parties. otherwise, we can't rely on it
Consuella ack & confirmed ok to exch.
Exchanged thanks.
Following the call, Ms Lynn provided AFCA with a copy of the interim FVRO that she had taken out against Mr Lynn dated 30 December 2021. She also provided copies of Family Court orders filed 11 March 2021 (discharging the orders of 19 August 2020 by consent) that she claimed 'refuted [Kate's] assertion'.
On 17 September 2023 Tye wrote to AFCA stating that he did not intend to provide more information but wanted to escalate the process to allow the ombudsman to reach an urgent decision.
Parties told of outcome
AFCA decided to set aside the trustee's amended decision and found that 50% of the benefit should go to Ms Lynn with the balance being paid to the six children in equal shares.
The day before publishing the decision to the parties, the designated ombudsman, Ms Jane Abbott, called Tye and told him of the outcome. The case note records that he was upset and asked a number of questions including why AFCA did not tell him that the decision was such a change and provide an opportunity to provide further information.
Later that day the senior ombudsman, Ms Heather Gray, called Tye. The case note (in which Tye is referred to as Mr McKain or Mr M) states:
I called Mr McKain … He had raised some issues about procedural fairness and the evidence provided and reviewed by AFCA.
I introduced myself. I explained our process to Mr M, including that the ombudsman reviews the entire file and makes their own independent decision. Mr M said he understood this, but the spouse had limited the information and documents she provided because when material was exchanged with the daughters they would then use it in court proceedings. I said this was not allowable under our rules, and hopefully the spouse's lawyers were dealing with that issue appropriately. However, we could only consider information and documents provided to us and on our file, and make our decision based on what was before us. I noted that all parties had been given ample opportunity to make submissions and provide documents.
Mr M said there were documents form Family Court proceedings that had been provided to us, and this was a breach of relevant legislation which required the consent of the Family Court before documents were provided to third parties. I said the Family Court documents provided to us had been exchanged with the other parties consistently with our duty of procedural fairness, and it was open to any of those parties to raise an issue of this type with us at the time. However, I was not aware that any party had raised this issue with us.
Mr M detailed a number of concerns about the behaviour of the daughters, who he said had stolen documents, broken into a house, stolen a car, and committed other offences. He said these offences would be reported to the WA Crimes Commission, as 2 of the daughters are WA police officers. Mr M said the daughters had cut services to the spouse's house and had been abusive in other ways.
Mr M said the AFCA process and the system generally are unfair and discriminatory towards people with disability and cognitive impairments like the spouse. She doesn't have the funds to defend all the legal proceedings. I said I could understand that the process had been very difficult and stressful for all concerned. However, AFCA could not intervene in court proceedings, or follow up allegations of criminal activity; our role is to consider and decide the complaint before us.
AFCA's Determination
On 11 October 2023, the Determination was issued to each party.
As indicated above, AFCA found that the trustee's decision (relevantly being the amended decision) was not fair and reasonable in its operation in all the circumstances. It set aside the trustee's decision, finding that 50% of the benefit should be paid to Ms Lynn with the balance paid to the six children in equal shares. Particular parts of AFCA's reasons are extracted below when the grounds are considered, but in summary AFCA arrived at its decision on the following reasoning:
(a)Under clause 24.8(3) of the Trust Deed, in the absence of a binding nomination made by Mr Lynn, the trustee was required to pay the benefit to the dependants or LPR of the deceased member in the manner and proportion as it determines (in its discretion).
(b)Ms Lynn (as Mr Lynn's spouse), the third and fourth respondents (as the deceased member's stepsons) and the fifth to eighth respondents (as the deceased member's daughters) were dependants within the meaning of the Trust Deed such that they were potential beneficiaries for a payment to dependants under clause 24.8(3).
(c)AFCA's usual approach in determining what a fair and reasonable outcome is between dependants with competing claims concerning how a trustee should exercise its discretion in relation to paying benefits includes considering:
(i)whether the payment is consistent with the purpose of superannuation death benefits, being 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; and
(ii)the deceased member's wishes.
(d)AFCA found that Ms Lynn and Kate were financially dependant on Mr Lynn at the date of death. However, neither could have had a reasonable expectation of continued financial support had Mr Lynn not died.
(e)AFCA considered that there was no evidence provided to support a finding that Mr Lynn would have continued to support Kate financially after she had finished her studies in December 2021.
(f)AFCA found that in light of the evidence in support of Mr Lynn planning on divorcing Ms Lynn, Ms Lynn could not have reasonably expected to have the continued financial support had Mr Lynn not died.
(g)AFCA found it was not fair and reasonable to pay the entire benefit to Ms Lynn when she could not have had a reasonable expectation of continued financial support.
(h)AFCA considered that Ms Lynn receiving 50% of the benefit was fair and reasonable as this represented the approximate expenses Ms Lynn would have had during the period of 18 months following the date of Mr Lynn's death. Eighteen months was the period of time during which the decision-maker considered it would be reasonable to assume that a property settlement and divorce would have been finalised had Mr Lynn not passed. On and from the end of this period, Ms Lynn would have received no ongoing financial support from Mr Lynn.
(i)As Mr Lynn had no other financial dependants who had a reasonable expectation of ongoing support, AFCA considered it was fair and reasonable for the remainder of the benefit to be paid in line with his wishes as expressed in his non-binding death benefit nomination, resulting in payment of the remaining 50% of the benefit to the children and stepchildren in equal shares.
Communication from Bethany wrongly included in decision-maker's material
For completeness I raise an issue addressed by AFCA's counsel. As noted, under rule A.10.4 of the Rules, any information provided to AFCA must be shared with the other parties to a determination, otherwise AFCA cannot rely upon it.
During AFCA's consideration of the complaint, it received an email on 24 May 2023 from Bethany. Bethany requested the contents of the email not be shared with some of the other parties to the complaint. However, this email was included in the material reviewed by the AFCA decision-maker, and the contents were referred to in the Determination. In light of rule A.10.4, AFCA should not have relied upon this information. On 19 October 2023 AFCA wrote to Ms Lynn to inform her of the error and highlighted that it was inadvertent. AFCA said that had the decision-maker not considered the contents of the email it would not have resulted in a different outcome in the Determination.
The questions of law and grounds – four themes
Returning to the principles explained in QSuper, whether or not AFCA made an error of law is to be determined having regard to the manner in which it satisfied itself as to whether there was any unfairness or unreasonableness in the trustee's decision.
Against that backdrop, the matters relied upon by Ms Lynn in her notice of appeal (having regard to both the questions of law and grounds as drafted) and submissions fall within four themes.
First, Ms Lynn complains that AFCA misapplied the provisions of the SIS Act and the Trust Deed by disregarding her status as a financial dependant and spouse.
Second, Ms Lynn asserts that AFCA wrongly made assumptions about reasonable expectations of financial support and her financial position having regard to divorce proceedings, including her purported obligation to meet debts incurred by Mr Lynn. Associated with this contention is Ms Lynn's submission that AFCA failed to have regard to the 'practical and financial implications' of the FVRO issued against Ms Lynn by Mr Lynn before he died. Other associated contentions are that AFCA was provided with 'stolen' documents that should not have been taken into account; that payments to Kate should have been treated as gifts; and that AFCA erred in its assessment of Mr and Ms Lynn's relationship at the time of Mr Lynn's death. These matters collectively can be said to relate to the manner in which AFCA referred to the reasonable expectations of any beneficiaries to financial support.
Third, Ms Lynn asserts a denial of procedural fairness by AFCA in that it delivered a preliminary decision and then a contrasting decision without providing an opportunity to Ms Lynn to address its reasons for the change.

Fourth, Ms Lynn contends that AFCA wrongly took into account evidence from the daughters which was obtained 'by trespass' and evidence that was disclosed to it in breach of s 121 of the Family Law Act (now repealed but which then relevantly prohibited the publication of evidence given in the Family Court).
Considered as a matter of substance, it can be accepted that these matters involve questions of law. AFCA did not suggest that Ms Lynn did not raise any question of law. Given the fact Ms Lynn was unrepresented, some latitude has been extended to her in the manner in which these questions were framed in her appeal, how they could potentially be expressed and the overlap in her various submissions.
As to the first theme, misconstruction of the terms of a statute constitutes an error of law. So, to the extent the ground relies on a misconstruction of the definitions in the Trust Deed and SIS Act, it can be said to raise an error of law: Resolution Life at [99].
The first, second and fourth themes raise questions of the absence of any evidence to support the manner by which AFCA satisfied itself that the trustee's decision was or was not fair and reasonable in all the circumstances. Making findings in the absence of evidence is an error of law. Many of the complaints made by Ms Lynn cannot properly be regarded as relating to an absence of evidence but might more properly be described as challenging findings of fact. However, I have taken into account that an error of fact may disclose irrationality or illogicality in the reasoning pathway that might amount to an error of law, as discussed (for example) in BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FCA 865 at [24]; and Haritos (as to erroneous fact-finding) at [192]-[202]. Regardless, in this case, putting aside any question about whether issues raised constituted challenges to fact-finding or errors of law, I have considered Ms Lynn's submissions and such distinctions have not affected the outcome.
As to the third theme, a denial of procedural fairness is an error of law and an appeal from a decision-maker on the ground that the applicant was denied procedural fairness raises a question of law: Clements at [8]; Haritos at [202].
Ms Lynn's application to rely on fresh evidence
Before turning to the grounds relied upon by Ms Lynn, I must deal with her application pursued at the hearing to rely upon additional documents that were not before AFCA at the time it considered and made its decision. I have looked at and considered all of the documents in issue.
Upon institution of the appeal, and as required by s 1057B of the Corporations Act, AFCA provided to this Court and Ms Lynn a list of documents that were before it in connection with its consideration of the Determination (284 items that pre-date the Determination). At a case management hearing, and having regard to the fact that Ms Lynn appeared in person and did not have the assistance of legal representation, I requested a registrar of this Court assist the parties in settling the index to Part C of the appeal book. This course was undertaken and Part C of the appeal book was then prepared by AFCA's solicitors for use on the appeal. It included in the 'Documents' section some 64 documents, all of which (bar one) pre-dated the Determination. The one document that post-dated the Determination is the letter from AFCA to Ms Lynn referred to at [107] above. There was no objection by the parties to the inclusion of these documents in Part C, nor to reference to them by the Court.
However, Ms Lynn purported to provide further documents to the Court for the purpose of the appeal by attaching them by way of a schedule (which she referred to as an exhibit) to her reply submissions (Schedule documents). They were also included in Part C of the Appeal Book, which contained copies of all filed submissions. I indicated to the parties prior to the hearing that whether or not the Schedule documents would be accepted into evidence would be addressed at the hearing and in these reasons. As there was some dispute, I asked for a joint submission as to which of the Schedule documents had been before AFCA as at the date of its Determination. I received that schedule on 3 February 2025.
As to the principles on adducing evidence that was not before a decision-maker such as AFCA, this is an appeal on a question of law as discussed at [15] above, and principles applicable to appeals under s 44 of the AAT Act guide the approach.
In Servos v Repatriation Commission (1995) 56 FCR 377 Spender J considered to what extent evidence not before the tribunal at the time of its decision can be adduced on an appeal under s 44 of the AAT Act (as then in force). His Honour held that the jurisdiction of this Court did not permit the reception of further evidence that was not before the tribunal for the purpose of challenging a finding of fact (at 385):
As s 44 of the Administrative Appeals Tribunal Act makes plain, only questions of law are to be considered at the Federal Court level. The policy of the legislation in my opinion is to make the decision of the tribunal final on questions of fact. It is inconsistent with that policy to seek to adduce evidence before the Federal Court for the consideration of the court on an application pursuant to s 44 of the Act, the object of which is to invite the court to disagree with a factual conclusion reached by that Tribunal.
Spender J concluded (at 386) that in any event the test for the reception of 'fresh evidence' had not been satisfied:
The evidence sought to be relied on has not been shown to be such that no reasonable diligence would have enabled the evidence to have been adduced before the tribunal. It is also moot whether that evidence has the quality that, had it been adduced, an opposite result would have been achieved.
The 'fresh evidence' appears to be directed at the question of the capacity of Mr Servos to engage in remunerative work subsequent to his leaving the Australian Taxation Office in 1990. That evidence appears to have been available, in the relevant sense, to the applicant prior to the hearing and determination by the Administrative Appeals Tribunal. It would not satisfy the tests for the reception of 'fresh evidence'.
In Waterford v The Commonwealth (1987) 163 CLR 54 Brennan J said (at 77‑78):
There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.
Similar principles are discussed in Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [31]; and MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10].
Even accepting that additional evidence might be admitted on an appeal of this nature in exceptional circumstances to make good a contention that raises a question of law (Phillips at [31]), for the following reasons Ms Lynn has not persuaded me that such exceptional circumstances arise.
The Schedule documents fall into three categories. The first category were before AFCA prior to the date of the Determination (and some were duplicates of those in the usual documents category of Part C). Therefore, no issue as to the inclusion of those documents in the court book arises. They are not new, and Ms Lynn was already entitled to make reference to the information in the form in which it appeared before AFCA. However, it must be remembered that a decision-maker is not obliged in their reasons to refer to each piece of evidence before them at the time of their decision. The fact that any of the documents were not referred to in its reasons does not of itself indicate that they were not considered.
The second category were not before AFCA but pre-date the Determination. I am not satisfied that they could not have been provided to AFCA prior to the Determination. Nor was the relevance of many of the documents apparent. For example, they included documents dating back to periods well before the death of Mr Lynn that I do not consider would have informed the matters being considered by AFCA. Others were dated more proximate to the time of Mr Lynn's death but their relevance was unclear.
I note in particular Ms Lynn's inclusion of a small number of emails passing between her and Mr Lynn prior to his death which at their highest suggest that Mr Lynn had at least some form of affection or regard for Ms Lynn on the particular days of the relevant emails. They predate the FVRO obtained by Ms Lynn against Mr Lynn and I note that there was other evidence as to Mr Lynn having commenced divorce proceedings. It is apparent that Ms Lynn sought to rely on the particular emails to challenge factual findings about the nature of her relationship with Mr Lynn at the time of his death. These emails could have been provided to AFCA at any time prior to the Determination. That the status of the relationship was a factual issue was clear from (at least) the communications referred to at [67], [79], [82], [86] and [96], noting in particular that the information referred to at [96] was provided to Ms Lynn by AFCA prior to the Determination with an opportunity to respond. I am not satisfied that the emails should be adduced on the appeal having regard to the principles discussed above at [123]-[126], the fact that the emails could have been provided to AFCA, the fact that AFCA cannot be said to have erred in failing to have regard to documents that were not before it, and because I do not consider any different result would have been achieved had they been before AFCA. In saying this I take into account that AFCA recognised that there was conflicting evidence about the status of the marriage, as it stated so much in its Determination. It was entitled to proceed on the basis of the evidence before it.
AFCA invited Ms Lynn and Tye on a number of occasions to provide information relevant to the complaint prior to it making the Determination. To the extent this evidence was within the control of Ms Lynn or Tye, they made a choice to refrain from providing it to AFCA or chose to provide it in a way that could not be considered by AFCA, by requesting certain documents not be shared with the other parties. The AFCA guidelines were also available to Ms Lynn and Tye at all material times to assist them in considering the kind of information that might be relevant.
I am not persuaded that the second category of the Schedule documents should be received as evidence on this appeal.
The third category of Schedule documents post-date the Determination. AFCA therefore could not have taken any of these documents into account. In any event, I do not consider there are exceptional reasons why they should be adduced. There was no clear enunciation by Ms Lynn of why the documents that post-date the Determination were relevant and probative in relation to any alleged error of law. I do not consider the new documents to be of a quality that, had they been before AFCA, would have led to a different result.
Accordingly, the appeal is to be determined having regard to the evidence that was before AFCA at the time of its decision.
Consideration of issues raised by Ms Lynn
First theme – misapplication of provisions
Ms Lynn contends that AFCA misapplied the provisions of the SIS Act and the Trust Deed in relation to her status as a spouse.
It is apparent that AFCA well understood the need to consider and apply the terms of the Trust Deed and SIS Act.
AFCA properly identified that each of Ms Lynn and the six children qualified as potential beneficiaries. Despite evidence as to the breakdown in the relationship between Mr Lynn and Ms Lynn, it accepted that Ms Lynn remained Mr Lynn's legal wife and qualified as a dependant under the Trust Deed and was to be considered in the distribution of the estate. Similarly AFCA properly identified that children and step-children fall within the definition of 'child' in the SIS Act as adopted by the Trust Deed. On that basis, all six children could be considered in the distribution of the benefit.
No error is shown as to AFCA's understanding of the definition in the Trust Deed or SIS Act.
Second theme – no or insufficient evidence for findings
The question then arises as to the matters to which AFCA might have regard in reaching its decision. According to its reasons those matters included whether there was anyone who had an expectation of ongoing financial support or a right to look to the deceased for ongoing financial support had the deceased not died, as well as Mr Lynn's wishes.
There is no doubt that AFCA was entitled to have regard to such matters. Expectations of future financial support on the part of dependants are relevant but not exhaustive: Bullivant v Australian Meat Industry Superannuation Pty Ltd [2018] FCA 1588 at [49]. Similarly, AFCA was entitled to have regard to Mr Lynn's wishes as evidenced by the non-binding death benefit nomination (rule 24.9 of the Trust Deed). It was entitled to have regard to the circumstances regarding Mr Lynn's testamentary intentions, although such circumstances are not necessarily determinative of themselves: Bullivant at [51]; and Wan v BT Funds Management Limited [2022] FCA 302 at [106].
Most of Ms Lynn's submissions focus on whether evidence was sufficient or ought to have been taken into account by AFCA in coming to its decision. By this route it might be said that Ms Lynn is seeking to challenge factual findings made by AFCA rather than questions of law in the strict sense. However, as I indicated above, I will address her various complaints about the evidence, some of which were included in the written submissions and some of which were raised during the hearing.
I should note that Ms Lynn's submissions were somewhat opaque and convoluted. That is not a criticism, as I have taken into account that Ms Lynn was not represented. It does, however, explain why not every submission or comment made by Ms Lynn is addressed separately in these reasons. There was much overlap, and some notable irrelevance and unfounded speculation. However, in my view the complaints relied upon by Ms Lynn are sensibly and practically covered by reference to the following matters.
First, Ms Lynn notes that the children were not found to have been financially dependent on Mr Lynn and so she alleges that they should not have been considered by AFCA for distribution. It is correct to say that, leaving aside Kate, there was no finding that the children were financially dependent upon Mr Lynn when he died, but that is not the test. The test is whether or not the person meets the definition of 'dependant' under the SIS Act as adopted by the Trust Deed, which requires only that the person be a child. 'Dependant' in this context does not mean 'financially dependent'. Further, no age limit is stipulated. Therefore, it was open to AFCA to consider all six children as dependants and so potential beneficiaries.
Before moving from this point, I note that AFCA found that Kate had been financially dependent upon Mr Lynn while she was a student but that there was no reasonable expectation that support would continue (noting she likely finished her studies in December 2021 as she graduated in February 2022). Ms Lynn complains on the appeal that payments to Kate were a gift. This is not to the point. Kate was found by AFCA to be entitled to payment from the benefit equal to that of the other five children because she met the definition of 'dependant' and because, as with the other children, she was referred to in the non-binding death benefit nomination. It was not based upon the finding of financial dependency.
Second, Ms Lynn alleges that it was not open to AFCA to rely on any pending divorce as it should have decided the position having regard to the fact that when Mr Lynn died, Ms Lynn was still married to him. Ms Lynn asserts it was inappropriate to have regard to what might happen in the future. I do not agree that AFCA was obliged to consider only the position that was current at the time of Mr Lynn's death. As made clear in Bullivant (among other authorities), it was open to AFCA to consider what may happen in the future when it considered the question of reasonable expectations of financial support. Mere speculation would not be justifiable, but there is no bar on taking into account the likely future needs of potential beneficiaries or other relevant facts relating to the future where there is a reasonable basis for doing so. Indeed, AFCA took into account financial liabilities relating to future mortgage payments that might have been incurred by Ms Lynn for a limited period.
Third, Ms Lynn submitted that AFCA should have taken into account that Mr Lynn had allegedly breached the FVRO she had obtained by making contact with her before he died. However, Ms Lynn conceded at the hearing that there was no evidence of an established breach before AFCA at the time of the Determination. She told the Court she had raised it in a telephone call with AFCA, but there was no evidence about this call before the Court. In these circumstances, I am not persuaded that AFCA had been provided with evidence of the alleged breaches of the FVRO and there was no error on the part of AFCA in failing to address them or give them any relevant weight.
Fourth, Ms Lynn submitted that AFCA wrongly took into account documents that were 'stolen' by the daughters and provided by them to AFCA. Ms Lynn alleged during the hearing that the daughters had broken into Mr Lynn's house and stolen documents. This was part of a broader submission that the daughters trespassed onto Ms Lynn's property 'without a warrant or [her] consent' and illegally seized documents and assets.
I am not persuaded there was any evidence of criminal activity by the daughters that was placed before AFCA and should have been considered by it. Ms Lynn seems to rely in this regard on bare allegations. She seems to rely on the fact that there was evidence that after their father's death, the daughters entered the home. Sarah provided AFCA with evidence about this by way of sworn affidavit dated February 2023. Sarah said relevantly:
On 10 December 2021 I received a text from my father advising me that he had been successful in obtaining a Family Violence Restraining Order against Consuella as the protected person.
On 12 December 2021 I received a text from my father advising that he was making a new will and needed my address which I gave it to him.
…
I did not see my father alive again after Christmas Day.
On 30 December 2021 I was notified that my father had been located deceased by police who had attended the house to serve on him a Family Violence Restraining Order or summons that had been taken out by Consuella.
The next day I attended the police station in company with other family members where they gave me my father's mobile telephone and keys to the house.
The police advised me that it appeared that my father had died of natural causes and had been deceased for a number of days, and there were no signs that it was a suicide.
I then went to my father's house and collected some personal effects and practical items. I noticed that all of Consuella's belongings were boxed up and in the garage. I am not sure how long they had been like that as I had not looked in the garage on Christmas Day.
The affidavit was amongst the materials provided to Ms Lynn by AFCA in accordance with its document sharing protocols prior to the Determination.
Having regard to the evidence, there was a basis upon which it is reasonable to assume that Sarah was given access to the house where her father lived by the police and there is no basis upon which it can properly be inferred that the daughters trespassed or did not have implicit consent from their father (prior to his death) or the police to enter the house. To the extent Ms Lynn alleged there were police reports about the alleged trespass, there is no evidence that they were before AFCA.

I am not persuaded that there was any probative information or evidence before AFCA that evidenced any trespass or illegal conduct on the part of Mr Lynn's daughters. It follows that no such information was overlooked by AFCA in its reasoning process.
Fifth, Ms Lynn alleges that she had liabilities with Mr Lynn, whereas the children did not. This seems to be a submission that in contrast to the children, Ms Lynn had an expectation that in the future she would continue to receive financial support from Mr Lynn in order to meet joint obligations. However, it is to be recalled that AFCA determined that it was appropriate that Ms Lynn receive 50% of the benefit. It is not as if her position was overlooked. The prospect of Ms Lynn incurring expenses over an 18-month period (the period assessed to be reasonable having regard to the likelihood at that time of a property settlement and divorce) was the very reason she received a greater proportion of the benefit than anyone else. I note that it is apparent from its reasons that AFCA took into account that Ms Lynn had said she was unemployed, on a disability support pension and supported by Mr Lynn; bank records provided by Ms Lynn; that the Family Court orders indicated there was jointly owned property; and that there was a self-managed superannuation fund. It reasoned having regard to this range of financial information.
AFCA set out the following in its reasons:
The deceased and the spouse were not living together at the date of death and he had engaged a divorce lawyer. They had each taken out FVROs against each other. I am satisfied, given the evidence provided, the relationship between the deceased and the spouse had ended.
The spouse says she was unemployed, on a disability support pension and the deceased was financially supporting her.
Although they were living apart, I consider it reasonable for the spouse to have expected the deceased, had he not died, to contribute towards the mortgage payments, property costs and her living expenses until a property settlement was agreed and the divorce finalised. I acknowledge the deceased hoped to have this completed by March 2022, and a property settlement had previously been agreed in August 2020, but it is unknown how long the process would have taken.
I consider it reasonable to assume a property settlement and divorce would have been finalised within 18 months after the end of 2021 and the spouse would have received no ongoing support from the deceased after this time.
Evidence was supplied in the bank statements for the offset accounts that the mortgage payments were approximately $12,479 pa. Allowing for 18 months of mortgage payments and living expenses, and offsetting for the spouse's pension income, I consider it fair and reasonable to apportion half of the benefit to the spouse.
There was therefore a reasonable basis disclosed by AFCA for proceeding on the basis that the time period of continued financial support by Mr Lynn would have been limited to 18 months. It was open to AFCA to assume that, after a property settlement and divorce, Ms Lynn should not have expected ongoing financial support from Mr Lynn. It was also open to it to proceed on the basis that Mr Lynn planned to pursue divorce proceedings. AFCA took into account that Ms Lynn would have financial commitments over the period of those proceedings. It therefore acknowledged and accepted that there was a reasonable basis for Ms Lynn to have expected to have some continued financial support but over a limited period. It was not necessary that it forensically identify exact dollar amounts in this regard, and nor did it require Ms Lynn to do so. AFCA was entitled to (and did) take these matters into account in assessing what would be a fair and reasonable distribution in all of the circumstances.
It follows that it was open to AFCA to find, as it did, that it was not fair and reasonable that the whole benefit be paid to Ms Lynn. The issue of Ms Lynn's financial dependency was not the only issue in play. AFCA was also entitled to have regard to Mr Lynn's wishes, as expressed generally through the revocation of his will and the non-binding death benefit nomination.
Sixth, Ms Lynn alleged that the daughters (or some of them) had wrongly provided copies of Family Court orders or other unspecified information that related to matters between Mr Lynn and Ms Lynn to AFCA in breach of both the Family Law Act and the Magistrates' Court Act 2004 (WA). The submissions were somewhat general in this regard, and it was also suggested that the daughters had wrongly placed information before AFCA from Supreme Court proceedings. Ms Lynn contended that the Family Court orders had been stolen from the house, as alluded to above. Ms Lynn also submitted generally that certain orders were breached, but there was no evidence before ACFA (or this Court) that established any such breach. At the hearing Ms Lynn appeared to accept that she had unsuccessfully sought to establish a breach of orders in the Family Court but that the case was dismissed because she 'didn't have the right advice'.
It seems to me that nothing turns on these allegations of breach. There is no probative evidence of any breach by any of the respondents in relation to the provision of copies of Family Court orders or the alleged use of other evidence from the Family Court or Supreme Court proceedings. Nor was it apparent what might result from any such breach and the effect of any reliance on those documents by AFCA. The allegations about misuse of documents were unsupported by evidence or submissions as to any legal consequence that would follow. The only particularity in this regard related to an allegation that copies of Family Court orders were provided to AFCA in breach of s 121 of the Family Law Act (as was then in force). In summary, that provision prohibited the printing or publication of an account of evidence in proceedings in the Family Court or any statement that proceedings have been instituted. I do not consider that the provision of copies of the orders referred to at [55]-[56] above for a complaint process before AFCA is the type of 'printing or publication' anticipated by s 121, which relevantly contemplated public access or distribution. I do not consider that provision of such orders to AFCA in order to establish the marriage and property settlement status of a deceased superannuation fund member was the type of conduct intended to be caught by that provision. Nor, in any event, is it apparent what would flow from any such 'breach'. It would have been inappropriate for the trustee and AFCA to proceed on an uncorrected assumption that there were no Family Court proceedings at any time between Mr Lynn and Ms Lynn.
Seventh, Ms Lynn alleged 'stolen' company records were also put before AFCA, including matters to do with a self-managed superannuation fund and bank records. She alleged the materials were stolen and then used against her with AFCA. Ms Lynn failed to persuade me that such thefts occurred or point to evidence that was before AFCA of such thefts. Ms Lynn sought to rely on various home loan applications, income and Centrelink statements by way of fresh evidence as addressed above but they were not before AFCA and I have not accepted them into evidence. (I note that one document appeared to challenge a submission to AFCA by Kate (see [79] above) that Ms Lynn was not a director of the company known as Ricon, but Ms Lynn's status as a director of a company that was apparently under the control of a liquidator was not of any apparent relevance and did not support the admission into evidence of such document).
Eighth, Ms Lynn alleges that an email about Mr Lynn's will should not have been taken into account by AFCA, as it did not have anything to do with superannuation in any event. This submission, I assume, refers to an email that Mr Lynn wrote to his lawyers on 12 December 2021 revoking his former wills and providing that his estate was to go to his four daughters in equal shares. A copy of the email was provided to Christina by the lawyer on 4 January 2022. It was open to the lawyer to provide it to Christina. It was a document to which AFCA was entitled to have regard, as it is relevant for the reasons already discussed.
Ninth, Ms Lynn alleges that AFCA failed to take into account that the existence of the FVRO obtained by Mr Lynn placed limitations upon her financial independence. This submission was put at a general level and was not supported by evidence. In any event, AFCA clearly had regard to the impact of the breakdown in the relationship between Mr and Ms Lynn in assessing to what extent it was reasonable for Ms Lynn to expect ongoing financial support and also referred to the fact that she was the recipient of certain government benefits.
Tenth, Ms Lynn contended that AFCA failed to provide grounds as to the basis for its Determination that Mr and Ms Lynn had contemplated divorce. AFCA dealt with this in some detail at pages 7 to 9 of its Determination. It is apparent that it had regard to a range of evidence about the potential divorce when considering the question of Ms Lynn's expectation for future financial support, all of which was apparently provided to Ms Lynn prior to the Determination. I will set out the relevant part of the reasons:
The deceased and the spouse married in September 2007.
The second sister stated the deceased and the spouse separated in 2018 and lived separately since that time. She said they tried to reconcile a few times up until March 2019 but were unsuccessful. The eldest daughter said the daughters had not had a relationship with the spouse for six years.
In August [2020], consent orders were made by the Family Court for a property split between the deceased and the spouse. The consent orders noted the deceased and the spouse separated on 5 June 2020.
…
On 11 March 2021, the deceased and the spouse jointly applied to the relevant state Family Court to have the consent orders, made 19 August 2020 for financial matters between them, completely discharged. The application stated:
Since these Orders were made we have reconciled our relationship and have decided to stay together and not separate our financial interests, we remain married.
The application form noted the same residential address for both parties.
…
In October 2021, the deceased emailed a health professional detailing the behaviour of the spouse following her discharge from a hospital in March 2021. This included:
•mood swings
•breakdown in relationships with friends due to her defamatory behaviour
•threats towards him and the daughters
•heavy drinking
•regular complaints to police
•poor self-care
•frivolous lawsuits; and
•overspending and withdrawing $100,000 from their mortgage account.
In December 2021, the deceased obtained an FVRO against the spouse. The reasons for the FVRO were:
Abusive and threatening emails, texts and Facebook posts. Financial abuse
The deceased texted the youngest daughter on 10 December 2021:
I got a VRO today against [spouse]
Interim order valid until March 2022 which is when I hope to have everything sorted out
It will force her to behave and she can't come near me or be abusive or she will be arrested
The youngest daughter said the deceased was planning on having his divorce from the spouse finalised in March 2022.
Also in December 2021, the spouse obtained an FVRO against the deceased. It was when the police went to the deceased's house on 30 December 2021 to serve the order that the deceased's body was found.
The deceased advised the third and youngest daughters on 24 November 2021:
I found a great lawyer
Happy
Will take a lot of pressure off me and get things sorted
The second daughter confirmed the deceased informed her, in December 2021, he had engaged a divorce lawyer. She stated he said the divorce had not been finalised earlier as the spouse would claim she was 'mentally ill and an incapable person', to delay proceedings.
As noted earlier, I am satisfied the spouse was financially dependent on the deceased at the date of death. However, the purpose of superannuation is to provide for those who were financially dependent on the deceased and who might have expected continuing financial support from him but for his death.
Given the above evidence, I consider it is unlikely the spouse could have reasonably expected to look to the deceased's superannuation as a future source of financial support or a shared resource in their retirement.
In my view, and remembering that the question being considered was the reasonableness of any expectation of ongoing financial support, AFCA disclosed the evidence it relied upon and its reasoning. The evidence, including that the parties were living apart, that the FVROs had been obtained, that Mr Lynn had apparently retained a divorce lawyer and had instructed a lawyer to remove Ms Lynn as a beneficiary under his will provided a logical basis for this conclusion. As set out at [152] above, it also concluded that given the evidence provided, the relationship between the deceased and the spouse had ended as at the date of Mr Lynn's death.
Third theme – procedural fairness
Ms Lynn asserts a denial of procedural fairness by AFCA in that it delivered a preliminary decision and then a contrasting decision without providing an opportunity to Ms Lynn to address its reasons for the change.
She alleges that AFCA 'moved significantly' from the position of the trustee without allowing anyone to respond to the Determination.
The principles in relation to procedural fairness are usefully set out by Wigney J in Resolution Life as follows:
[102]As noted earlier, AFCA's own rules require it to consider complaints in a manner which provides procedural fairness to the parties. The requirement that AFCA provide procedural fairness to the parties to a complaint would in any event be readily implied given the nature of AFCA's complaint resolution processes and the determinations AFCA may make, particularly in respect of superannuation complaints. Mr Mitchell did not contend that AFCA was not obliged to provide procedural fairness to the parties to his complaint. His submission, in substance, was that AFCA had provided procedural fairness to the Trustee and the Insurer.
[103]The relevant principles in respect of procedural fairness are well-established and may be shortly stated. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152: [2006] HCA 63, the High Court (at [32]) approved the following statement made by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591; [1994] FCA 293:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
(Citation omitted)
[104] The Full Court in Alphaone also stated as follows (at 591-592):
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
Contrary to her submissions, I do not accept that Ms Lynn was denied the opportunity to advance evidence or submissions to AFCA prior to the Determination in relation to the critical issues. I have touched on some of those opportunities above, but in particular:
(a)AFCA shared all information upon which it relied with the parties (subject to what is disclosed at [107] above) and gave them the opportunity to make submissions;
(b)AFCA sent its recommendation to the parties prior to delivery of the Determination;
(c)on 15 August 2023 Tye (on behalf of himself, Ms Lynn and Ben) informed AFCA that the recommendation was rejected and requested that an [AFCA] ombudsman immediately proceed to determination. Tye said that he, Ms Lynn and Ben had 'no further information to provide';
(d)the email of 15 August 2023 was provided to the other parties who were invited by AFCA to make any further submissions;
(e)AFCA informed Tye that the parties had until 23 August 2023 to respond with any new material;
(f)between 23 August 2023 and 11 September 2023 Tye corresponded with AFCA on behalf of Ms Lynn, again seeking expedition and providing AFCA with evidence said to show Ms Lynn was suffering hardship (which he requested be withheld from the other parties);
(g)on 14 September 2023, and as noted above, Kate provided further evidence and submissions in support of the assertion that Mr Lynn intended to divorce Ms Lynn and those materials were shared with all parties who were invited to make submissions in response;
(h)on 15 September 2023 Ms Lynn called and emailed AFCA to provide materials in response;
(i)on 17 September 2023 Tye again requested on behalf of Ms Lynn that a determination be made urgently, and said that he did not intend to provide more information;
(j)none of Ms Lynn or the six children sought to provide any further information or submissions to AFCA between 17 September 2023 and the date of the Determination;
(k)during two separate calls from AFCA to Tye on 10 October 2023 Tye referred to certain documents which had not been provided to AFCA but said that Ms Lynn and he had knowingly limited certain information and documents provided to AFCA to prevent those documents being used in separate Family Court proceedings between the parties; and
(l)on 11 October 2023, and after these many opportunities for input from Ms Lynn, AFCA issued the Determination.
It was at all times apparent that the critical issue considered by the trustee, and that also fell to be considered by AFCA, was the extent to which Ms Lynn had a reasonable expectation of financial support from Mr Lynn. Ms Lynn had every opportunity to provide additional information relating to her financial circumstances and prospective divorce proceedings. She did in fact provide information to AFCA.
I am not persuaded that there is any failure to accord procedural fairness to Ms Lynn. The mere fact that AFCA substituted a different manner of apportionment of the benefit in this case does not evidence an absence of procedural fairness but rather is the result of AFCA undertaking the task required of it. The complaint process anticipates a potential change in outcomes.
Fourth theme – trespass and alleged breach of s 121 of the Family Law Act
The contentions in relation to these matters (that AFCA wrongly took into account evidence from the daughters which was obtained 'by trespass' and evidence that was disclosed to it in breach of s 121 of the Family Law Act) have been addressed above: see [155]-[156]. I am not satisfied that any impropriety on the part of the daughters as alleged has been established or was relevant to AFCA's decision. Further, as AFCA noted when informing Tye of the decision on 10 October 2023 ([103] above), no party raised any issue as to the production of those documents with AFCA at the time.
Conclusion

In my view Ms Lynn has failed to establish that AFCA made any error of law in concluding that the trustee's decision of 5 December 2022, maintained by its confirmation letter of 1 February 2023, was not fair and reasonable in its effect. Its substituted decision was within power.
AFCA correctly identified the dependants within the meaning of the Trust Deed and SIS Act; carefully considered which potential beneficiaries might have reasonable expectations of ongoing financial support and the nature and duration of such potential support; considered relevant evidence about the legal status of the marriage and the nature of the relationship between Mr and Ms Lynn around the time of his death; considered relevant evidence about the financial position of Ms Lynn; considered relevant evidence about support provided to Kate and disclosed a reasonable basis for deciding that although she was financially dependent there was no reasonable expectation of ongoing financial support from Mr Lynn; and took into account the relevant circumstances of the potential beneficiaries having regard to the information before it.
AFCA correctly identified matters it was entitled to take into account. In considering whether it was satisfied that the trustee's decision was fair and reasonable in all the circumstances, AFCA was entitled to assess that a reasonable expectation about the time period and quantum of financial support to Ms Lynn was that they were limited. It was also entitled to take into account the fact that Mr Lynn had expressed his wishes in relation to the distribution of the benefit by way of the non-binding death benefit nomination, and that such nomination referred to all six children. AFCA's assessment as to reasonable expectations disclosed reasoning based on a consideration and understanding of the evidence. Its reference to the facts and circumstances did not disclose illogicality in its reasoning as that term is understood in the context of an error of law.
There is nothing in AFCA's reasons that disclosed any misconception on its part as to its statutory task, and it accorded Ms Lynn procedural fairness through the many opportunities extended to her to provide information and by the appropriate distribution of material to all relevant parties.
Accordingly, the appeal is dismissed. I am not aware of any reason why costs should not follow the event in the usual way. However, before making any costs order, the parties are invited to provide any agreed minute of proposed orders in that regard, as to both liability and quantum. Chambers will communicate further with the parties as to a referral of the issue of costs to a registrar in the event that costs orders are not agreed.

I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.
Associate:
Dated: 13 March 2025

File number:	WAD 279 of 2023
Judgment of:	BANKS-SMITH J
Date of judgment:	13 March 2025
Catchwords:	SUPERANNUATION – death benefit – appeal from decision of trustee of superannuation fund to distribute whole of death benefit to wife of deceased member – where marriage had broken down – deceased member had made non-binding death benefit nomination naming four children and two step-children as beneficiaries – complaint brought by daughters to Australian Financial Complaints Authority – AFCA not satisfied that trustee's decision was fair and reasonable in the circumstances – AFCA upheld complaint and determined that benefit be distributed between wife and six children – appeal by wife from decision of AFCA – meaning of 'dependant' – matters to be taken into account when considering whether potential beneficiary has reasonable expectation of financial support – nature of AFCA's statutory task – whether appellant accorded procedural fairness by AFCA – no error of law on part of AFCA made out – appeal dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44 Corporations Act 2001 (Cth) ss 761A, 1053-1058, Part 7.10A Family Law Act 1975 (Cth) s 121 Superannuation Industry (Supervision) Act 1993 (Cth)
Cases cited:	Ascic v Comcare [2020] FCAFC 105 BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FCA 865 Brown v Repatriation Commission (1985) 7 FCR 302 Bullivant v Australian Meat Industry Superannuation Pty Ltd [2018] FCA 1588 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 ISG Financial Services Ltd v Australian Financial Complaints Authority Ltd; ANLP Pty Ltd atf AP Superannuation Fund v ISG Financial Services Ltd (No 2) [2022] QSC 281; (2022) 12 QR 639 MetLife Insurance Limited v Australian Financial Complaints Authority (No 3) [2022] FCA 849 Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 Notesco Pty Ltd v Australian Financial Complaints Authority Ltd [2022] NSWSC 285 Ogawa v Australian Information Commissioner [2014] FCA 229 Phillips v Commissioner for Superannuation [2005] FCAFC 2 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2020) 275 CLR 582 QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55; (2020) 276 FCR 97 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Resolution LifeAustralasia Limited v Mitchell [2024] FCA 310 Rushton v Commonwealth Superannuation Corporation (No 3) [2021] FCA 358 Servos v Repatriation Commission (1995) 56 FCR 377 Wan v BT Funds Management Limited [2022] FCA 302 Waterford v Commonwealth (1987) 163 CLR 54
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	173
Date of last submissions:	3 February 2025
Date of hearing:	10 December 2024
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent:	Ms H Hofmann
Solicitor for the First Respondent:	Becketts Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs
Counsel for the Third to Eighth Respondents:	The third to eighth respondents did not appear

ORDER MADE BY:	BANKS-SMITH J
DATE OF ORDER:	13 MARCH 2025