Palmer and Defence Force Retirement and Death Benefits Authority
[2004] AATA 1170
•9 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1170
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2004/7
GENERAL ADMINISTRATIVE DIVISION ) Re DIANNA PALMER Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Mr S C Fisher, Member Date9 November 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
........[Sgd]……
S C Fisher
Member
CATCHWORDS
PUBLIC ADMINISTRATION – Defence Force Retirement and Death Benefits – no entitlement to spousal pension – applicant not a “spouse who survives a deceased person” – pension denied
PRACTICE AND PROCEDURE – power of primary decision maker – reopening earlier decision - functus officio – ultra vires - respondent’s power to review affirmed
Defence Force Retirement and Death Benefits Act 1973 ss6, 39, 41, 99
Family Law Act 1975
De Facto Relationships Act 1984 (NSW)
Social Security Act 1991
Commonwealth of Australia Constitution s75
Acts Interpretation Act 1901 s 33
Akers v Minister for Immigration (1988) 16 ALD 688
Jayasinghe v Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1997) 76 FCR 301
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321Director-General of Social Services v Chaney (1980) 3 ALD 161
Legal Aid Commission of Western Australia v Edwards (1982) 4 ALD 598
Evans v Freimann (1981) 3 ALD 326
Wiest v DPP (1989) 23 FCR 472
Polkinghorne v Holland (1934) 51 CLR 143Mylan and Defence Force Retirement and Death Benefits Authority [1999] AATA 772
Main v Main (1949) 78 CLR 636
Tulk v Tulk [1907] VLR 64,
In the Marriage of Todd (No 2) (1976) 25 FCR 260
Hornsby v Military Superannuation & Benefits Board of Trustees No 1 [2003] FCA 54
George v Hibberson [1987] DFC 95
In the Marriage of Falk (1977) Fam LR 11,238
Gray and Defence Force Retirement and Death Benefits Authority [2004] AATA 450
Beadle v Director General of Social Security (1985) 7 ALD 670
Re Beadle v Director-General of Social Security (1984) 6 ALD 1
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Casey v Repatriation Commission (1995) 39 ALD 34
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Chandler v Alberta Association of Architects [1989] 2 SCR 848
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Chandler v Alberta Association of Architects [1989] 2 SCR 848
Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550
R v Australian Stevedoring Industry Board; ex p Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Re Media, Entertainment and Arts Alliance; ex p The Hoyts Corporation [1993] HCA 41
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
House v Department of Defence (1996) 65 FCR 94
Kioa v West (1985) 159 CLR 550
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 5139 November 2004 REASONS FOR DECISION
Mr S C Fisher, Member
Introduction and background
1. This is an application for review of a decision, made on 9 October 1998 by a person authorised by a delegate of the Defence Force Retirement and Death Benefits Authority (the Respondent), that Ms Dianna Palmer (the Applicant) was a “spouse who survives a deceased person” as defined in section 6B of the Defence Force Retirement and Death Benefits Act 1973 ("the Act"). On its own initiative the Respondent reconsidered the decision, and on 12 June 2003, a delegate of the Respondent determined that the Applicant did not meet the definition of “spouse who survives a deceased person” under section 6B of the Act. Thus the Applicant was not entitled to a spouse's pension under section 39 of the Act. The decision of 12 June 2003 was reconsidered and confirmed by the Respondent in accordance with section 99(4) of the Act on 13 February 2004. The Applicant applied for review by this Tribunal on 5 March 2004.
Jurisdiction
2. This Tribunal has jurisdiction to review the 12 June 2003 decision of the Respondent because of section 99(6) of the Act.
3. The Applicant contested whether the Respondent had power to review and reconsider its 9 October 1998 decision, which the Respondent did on 12 June 2003 (as reconsidered and confirmed on 13 February 2004) on the basis that the decision was functus officio. This issue is considered later in these Reasons for Decision. This contention does not dispute the jurisdiction of this Tribunal as such; rather, it goes to the question whether the Act empowers the Respondent to make a new decision or to revisit an earlier decision on its own motion.
Hearing on the Papers
4. At the request of the parties, the Tribunal made this decision on the papers as it appeared to the Tribunal that the issues for determination in this case could be adequately determined in the absence of the parties within the meaning and operation of section 34B of the Administrative Appeals Act 1975.
5. The Applicant was represented by Davis Norman Barristers and Solicitors. The Respondent was represented by the Australian Government Solicitor.
The Material Before the Tribunal
6. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) and considered the following material provided by the Applicant and the Respondent:
§ Applicant’s Statement of Issues dated 28 April 2004.
§ Applicant’s Submissions dated 16 June 2004.
§ Respondent’s Statement of Issues dated 28 April 2004.
§ Respondent’s Submissions dated 9 July 2004.
Issues
7. The principal issue before the Tribunal is within a short compass. It is whether the Applicant is a “spouse who survives a deceased person” as defined in section 6B of the Act, and is entitled to a spouse’s pension under section 39 of the Act. A subsidiary issue is whether or not the Respondent had power to review and reconsider its 9 October 1998 decision, which the Respondent did on 12 June 2003 (as reconsidered and confirmed on 13 February 2004) on the basis that the decision was functus officio.
Applicant’s Submissions
8. The nub of the Applicant’s submissions was that the Respondent had made its decision on 9 October 1998 to pay the Applicant a spouse’s pension and that this decision was final and conclusive. It was not open to the Respondent to reconsider the 9 October 1998 decision. The Applicant contended that the Respondent did not have lawful power to review and reconsider its 9 October 1998 decision, which the Respondent did on 12 June 2003 (as reconsidered and confirmed on 13 February 2004) on the basis that the decision was functus officio.
9. The 12 June 2003 determination of the Respondent under sections 6A and 6B of the Act (T47) was based upon advice from the Australian Government Solicitor to the effect that the Applicant had made a misrepresentation to the Respondent to the effect that the Applicant was in a marital relationship with Mr Cook at the time of his death, which misrepresentation and caused the Respondent to make the 9 October 1998 decision in the first place. The Applicant contended that the 12 June 2003 determination (and subsequent reconsideration) was wrong in law because the Respondent had never put the misrepresentation allegation to the Applicant.
10. The Applicant also contended that the Respondent was biased against the Applicant. The Applicant did not make any specific submissions on bias, and reserved its right to do so in any subsequent submissions.
11. The Applicant argued that Part XI (the review of decisions of the Defence Force Retirement and Death Benefits Authority) did not contain any provision that empowered the Respondent to make a new decision or to revoke an existing decision (citing Akers v Minister for Immigration (1988) 16 A:LD 688). The Applicant also argued that there was no implied power in the Act that empowered the Respondent to make a new decision.
12. The Applicant argued, citing Jayasinghe v Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1997) 76 FCR 301, that the doctrine of functus officio meant that once the Respondent had made its decision on 9 October 1998 to pay the Applicant a spouse’s pension, the exercise of the Respondent’s authority under section 39 of the Act was spent or exhausted, leading to the conclusion that Respondent had no power to make, on its own motion, the subsequent 12 June 2003 determination. The Applicant contended that the later 12 June 2003 determination was ultra vires.
13. The Applicant contended that the decision of the High Court of Australia in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 operated in such a way as to preclude the Respondent from revisiting the 9 October 1998 decision. The Applicant argued that when the Respondent acted on the request from the Applicant to commute periodic pension payments to a lump sum, this was a final decision that concluded the matter and finalised the relationship between the parties. In support, the Applicant also cited the decisions in Director-General of Social Services v Chaney (1980) 3ALD 161 at 178; Legal Aid Commission of Western Australia v Edwards (1982) 4 ALD 598 at 599-600 and Evans v Freimann (1981) 3 ALD 326 at 328.
14. The Applicant also argued (citing Wiest v DPP (1989) 23 FCR 472 at 522 – 525) that the doctrine of issue estoppel precluded the Respondent from reopening the 9 October 1998 decision which the Respondent did on 12 June 2003 by way of the determination of the same date.
15. The Applicant did not put any material before the Tribunal in its submissions dealing with the issue whether the Applicant was in a marital relationship with Mr Cook at the time of his death within the meaning of sections 6A and 6B of the Act. The Tribunal noted, however, that there was correspondence from the Applicant’s lawyers in the section 37 documents which addressed this issue.
Respondent’s Submissions
16. The Respondent’s submissions are dealt with later in these Reasons for Decision in the discussion of the Applicant’s contentions.
Summary of the Parties’ Contentions
17. The Tribunal noted the contentions of the parties concerning the construction and operation of these provisions in general and in this particular case. In short, the Applicant contended that:
(a)as at 28 July 1998, the Applicant was in a marital relationship with Mr Cook them within the meaning of section 6A;
(b)the Applicant was a spouse who survived a deceased person within the meaning of section 6B;
(c)the Applicant was entitled to a spouse’s pension under section 39; and
(d)the Respondent did not have power to or was not entitled at law to make a reconsideration of its earlier section 39 determination under section 41A of the Act.
The Respondent’s contentions took issue with the Applicant’s contentions, beginning from a baseline that the Applicant and Mr Cook were not in a marital relationship as at 28 July 1998, so therefore the Applicant was not a surviving spouse and was not qualified to receive or entitled to a spouse’s pension. The Respondent also contended that it was able to reconsider its earlier favourable determination.
Legislation
18. The legislative warrant for the payment by the Respondent of a spouse pension to a person on the death of a recipient member is grounded in section 39 of the Act. It is not necessary for the purpose of these proceedings to reproduce that provision.
19. Sections 6A and 6B of the Act are relevant to the central issue in these proceedings. Those provisions read:
“6A Marital relationship
(1)For the purposes of this Act, a person had a marital relationship with another person at a particular time if the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis at that time.
(2)For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person’s husband or wife on a permanent and bona fide domestic basis at a particular time only if:
(a)the person had been living with that other person as that other person’s husband or wife for a continuous period of at least 3 years up to that time; or
(b)the person had been living with that other person as that other person’s husband or wife for a continuous period of less than 3 years up to that time and the Authority, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis at that time;
whether or not the person was legally married to that other person.
(3)For the purposes of this Act, a marital relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).
(4)For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:
(a)the person was wholly or substantially dependent on that other person at the time;
(b)the persons were legally married to each other at the time;
(c)the persons had a child who was:
(i)born of the relationship between the persons; or
(ii)adopted by the persons during the period of the relationship;
(d)the persons jointly owned a home which was their usual residence.
(5)For the purposes of this section, a person is taken to be living with another person if the Authority is satisfied that the person would have been living with that other person except for a period of:
(a)temporary absence; or
(b)absence because of special circumstances (for example, absence because of the person’s illness or infirmity or a posting of the person).
6B Spouse who survives a deceased person
(1)In this section:
deceased person means a person who was, at the time of his or her death, a contributing member, a recipient member or a person in respect of whom deferred benefits were applicable.
(2)For the purposes of this Act, a person is a spouse who survives a deceased person if:
(a)the person had a marital relationship with the deceased person at the time of the death of the deceased person (the death); and
(b)in the case of a deceased person who was a recipient member at the time of the death:
(i)the marital relationship began before the recipient member became a recipient member; or
(ii)the marital relationship began after the recipient member became a recipient member but before the recipient member reached 60; or
(iii)in the case of neither subparagraph (i) nor (ii) applying—the marital relationship had continued for a period of at least 5 years up to the time of the death.
(3)In spite of subsection (2), a person is taken to be a spouse who survives a deceased person if:
(a)the person had previously had a marital relationship with the deceased person; and
(b)the person did not, at the time of the death, have a marital relationship with the deceased person but was legally married to the deceased person; and
(c)in the case of a marital relationship that began after the deceased person became a recipient member and reached 60—the relationship began at least 5 years before the deceased person’s death; and
(d)in the Authority’s opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.
20. The other provision of the Act that is material to the resolution of this appeal is Part XI comprising section 99, which reads:
“99 Review of decisions of Authority
(1)In this section:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
decision of the Authority means a decision of the Authority, or a delegate of the Authority, under this Act, under the Defence Forces Retirement Benefits Act 1948 or that Act as amended and in force from time to time, or under any other Act that relates to retirement benefits for members of the Defence Force and modifies or affects the provisions of the Defence Forces Retirement Benefits Act 1948 or that Act as amended and in force from time to time.
(2)A person who is affected by a decision of the Authority and is dissatisfied with the decision may, by notice in writing given to the Authority, within a period of 30 days after the date on which the decision first comes to the notice of the person, or within such further period as the Authority allows, request the Authority to reconsider the decision.
(3)There shall be set out in the request the ground on which the request is made.
(4)Upon the receipt of the request the Authority shall reconsider the decision and may either confirm the decision or vary the decision in such manner as it thinks fit.
(5)The Authority shall, by notice in writing to the person who made the request, inform the person of the result of its reconsideration of the decision.
(6)Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Authority, being decisions that have been confirmed or varied under subsection (4).”
Discussion of the Evidence
21. The section 37 documents before the Tribunal provide an extensive documentary trail of the dealings and interactions between the Applicant and the Respondent, as well as dealings and interactions between the Applicant and other persons (including the late Mr Cook) who are not party to these proceedings.
22. The ultimate fact in issue (factum probandum) is whether or not the Applicant and Mr Cook were in a de facto relationship at the time of his death. The Tribunal noted that the contention of the Applicant that she was in a de facto relationship with Mr Cook at the time of his death goes against the weight of contemporaneous extrinsic evidence. The Tribunal placed particular weight on the fact that the Applicant’s lawyers wrote to Mr Cook on 12 May 1998 stating that the de facto relationship terminated on about 26 April 1998. This communication took place in the context of negotiations for a property settlement. Viewed both in isolation and in its broader context, as well as objectively, this communication from the legal representatives of the Applicant to the Applicant’s estranged de facto spouse signals quite clearly the Applicant’s subjective understanding of the termination of their relationship. There is nothing before the Tribunal to suggest that this communication was made by the Applicant’s lawyers against her instructions, and indeed no contention was made to this effect. In any case, as the Applicant’s lawyers are, in law, her agent, then what an agent does on behalf of the principal is in law the act of the principal herself: (cf Polkinghorne v Holland (1934) 51 CLR 143 at 156 and G Dal Pont, Law of Agency (Butterworths, Sydney, 2001), para [1.35]).
23. The Tribunal took into account that the evidence of what Mr Cook said to his treating psychiatrist, Dr Robert Parker, on 20 June 2003 (that the Applicant had informed Mr Cook that their relationship was over), is hearsay (and second-hand hearsay at that). Nevertheless, the Tribunal can accept Dr Parker’s account that the conversation did take place. It is for the Tribunal to decide what weight is to be placed upon Dr Parker’s account. The Tribunal noted that what a patient seeking medical intervention and therapeutic assistance for a mental illness such as depression would inform his or her medical professional about any causes of the underlying mental illness is a matter that is highly relevant to the diagnostic and treatment regime that a medical professional would recommend and implement in relation to a given patient.
24. Taken together, the evidence concerning the breakdown of the relationship between the Applicant and Mr Cook suggests that this relationship ended on 26 April 1998.
Findings of Fact
25. The Tribunal considered carefully the material before it. The Tribunal makes the following findings of fact:
A.Mr David John Cook was born on 2 January 1956.
B.Mr Cook retired from the Australian Army on 2 January 1995.
C.Mr Cook died in a motor vehicle accident on 28 July 1998.
D.Mr Cook was 43 years of age at the date of his death.
E.The Respondent made a recognition authority with effect from 1 December 1993 recognising the de facto marriage between Mr Cook and the Applicant.
F.Mr Cook was legally married to but separated from Mrs Janice Cook at the time of his death.
G.Mr Cook made a will on 11 November 1997 that left his entire estate to his daughter Michelle Louise Cook and his mother Gloria Mary Cook in equal shares as tenants-in-common.
H.The Applicant and Mr Cook were the joint tenants of a property situated at 574 Strangways Road, Humpty Doo, Northern Territory, which property was acquired on 24 February 1995.
I.The Applicant and Mr Cook registered a 1989 Nissan Patrol motor vehicle in their joint names on 3 March 1998.
J.On 12 April 1995 the Department of Veterans’ Affairs completed a certificate of entitlement. This certified that money was to be advanced to Mr Cook and the applicant in respect of a purchase of a house and holding. The certificate stated that the applicant and Mr Cook would hold the property as joint tenants.
K.On 12 May 1998 Dennis Norman and Associates (the Applicant’s solicitors) wrote to Mr Cook stating that they were instructed by the Applicant that:
(a)the Applicant had lived in a de facto relationship with Mr Cook for four years;
(b)Mr Cook’s and the Applicant’s de facto relationship was terminated on 26 April 1998;
(c)Mr Cook had paid the deposit and the monthly mortgage repayments on Strangways Road;
(d)the Applicant had paid all of the household accounts incurred by the Applicant and Mr cook during the course of their relationship, including food, power and water bills, telephone etc;
(e)the Applicant would accept $15,000 as a property settlement. In exchange, she would sign over her interest in Strangways Road.
L.On 19 May 1998 Mr Cook wrote to the Applicant’s solicitors. Mr Cook stated:
(a)the Applicant and her son commenced living with him in Darwin in 1995;
(b)the Applicant contributed to household expenses but had not paid all household expenses as claimed;
(c)from June 1997, the Applicant paid for her son’s education and living expenses. The Applicant also paid for her living and travel expenses between Darwin and Melbourne.
(d)during “periods of separation”, both parties paid their own living expenses;
(e)he had paid the deposit and monthly repayments on the Nissan while the parties remained together however that during the period of separation the Applicant retained sole use of the vehicle; and
(f)during the period of separation, the Applicant did not contribute towards the household expenses.
M.On 29 July 1998 Mr Cook’s solicitors wrote to the applicant’s solicitors advising that they had been instructed to act on behalf of Mr Cook. That letter noted that Mr Cook had instructed them that:
(a)the de facto relationship lasted for approximately five years and the parties separated on 26 April 1998;
(b)when the parties separated, the applicant left Strangways Road and took her personal belongings and the Nissan;
(c)Mr Cook was content for the applicant to take the Nissan on the proviso that she continued to make the repayments on the Nissan to Esanda Finance. However, it was noted that the Applicant had failed to meet the repayments and a sum of $847.03 was outstanding. It was suggested that the Applicant return the Nissan to Mr Cook, failing which he would initiate proceedings for recovery of the vehicle;
(d)at the commencement of cohabitation, the Applicant owned some household items and an old motor vehicle. That vehicle was sold for $2,000 and the Applicant retained the proceeds of the sale for her own use and benefit;
(e)at the commencement of cohabitation, Mr Cook owned three motorcycles, some furniture, and had savings of $12,000. Mr Cook used $10,000 of his savings to purchase the Nissan. Mr Cook also used his payout from the Army of $40,000 to purchase Strangways Road in early February 1995;
(f)the Applicant had made no contribution towards the payments of either the Nissan or Strangways Road;
(g)Mr Cook paid for all of the associated expenses in relation to the purchase of the property; and
(h)the Applicant purchased groceries and contributed approximately 30% of the household bills.
N.On 24 September 1998 the Applicant made an application for spouse’s pension. In that application, she signed a declaration that the information provided by her was true and correct.
O.The Applicant’s solicitor wrote to ComSuper submitting the application on 28 September 1998. In submitting the application, the Applicant’s solicitor stated that she was instructed that:
(a)at the time of Mr Cook’s death the parties were living separately as a result of threats made against the Applicant’s life;
(b)Mr Cook was receiving counselling for his anger problems with a view to reconciling with the Applicant;
(c)Mr Cook had spent a short period to time in a psychiatric ward in Darwin after perpetrating violence against the applicant;
(d)due to Mr Cook’s violence, the Applicant had no option but to leave “the home”. However the Applicant had remained of the view that once Mr Cook had resolved his problems, a reconciliation would have occurred; and
(e)the Applicant was financially dependent on Mr Cook.
P.The Applicant’s lawyers wrote to Mr Cook on 12 May 1998 stating that the de facto relationship terminated on about 26 April 1998.
Q.Between 26 April 1998 and Mr Cook’s death, his lawyers had been communicating with the lawyers for the Applicant in relation to a property settlement between those parties.
R.On or about 20 July 1998, Mr Cook participated in a record of interview with a member or some members of the Northern Territory Police Service regarding the alleged contravention of a restraining order to the effect that Mr Cook was not to approach the Applicant.
S.Mr Cook informed his treating psychiatrist, Dr Robert Parker, on 20 June 2003 that the Applicant had informed Mr Cook that their relationship was over.
T.Dr Robert Parker opined on 17 November 2003 that Mr Cook suffered from an adjustment disorder with depressed mood as well as alcohol abuse. The cause of his adjustment disorder appeared to be the break-up of his relationship with the Applicant.
Tribunal’s Reasons
Was the Applicant in a marital relationship with Mr Cook?
26. The Tribunal considered next the central issue in these proceedings, namely whether the Applicant was in a marital relationship with Mr Cook at the time of his death on 28 July 1998. Sections 6A and 6B of the Act are relevant to the central issue in these proceedings. Those provisions have been set out earlier in these Reasons for Decision. Essentially, section 6A of the Act determines whether or not two people are in a marital relationship. Section 6B of the Act indicates the circumstances under which a person is to be treated as a spouse who survives a deceased person, and the decisive determinant is if a person has a marital relationship with the deceased person. Section 6B is the substantive provision and section 6A is the interpretational provision. The parties’ contentions on the central issue have been summarised earlier in these Reasons for Decision.
27. Section 6A(1) of the Act states that a person has a marital relationship with another person at a particular time if the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis at that time. This provision (together with sections 6A(2) – (5)) constitutes an exhaustive statement of what is a marital relationship for the purposes of the Act. Reference to the applicable and relevant underlying general law is, however, permissible for the interpretation and construction of this provision. Section 6A(2) injects a temporal requirement for the purposes of section 6A(1), and this corresponds to the alternatives presented by paragraphs (a) and (b) of section 6A(2). Paragraphs (a) and (b) of section 6A(2) are differentiated by whether or not the marital relationship in question is less than or more than 3 years’ duration. Common to both paragraphs (a) and (b) is the notion that the putative spouses have been living with each other as “husband and wife for a continuous period …”. Section 6A(5) deals with some of the situations when spouses are absent from each other, and in the circumstances described in that provision, it treats the persons as living with each other despite their absence from each other. Section 6B of the Act provides two sets of circumstances under which a person can be a spouse who survives a deceased person, and this bifurcation corresponds to each of sections 6B(2) and (3) respectively. In terms of how sections 6B(2) and (3) interact, section 6B(3) is given primacy over sections 6B(2). Section 6B(2)(a) stipulates that the surviving spouse must have a marital relationship with the deceased person at the time of that person’s death: see also Mylan and Defence Force Retirement and Death Benefits Authority [1999] AATA 772 at [16].
28. It is common ground between the parties that it is section 6A(2)(a) which applies because the Respondent made a recognition authority with effect from 1 December 1993 that recognised the marital relationship between Mr Cook and the Applicant, and this relationship endured for more than three years. Accordingly, it was not necessary for the Tribunal to follow the signpost contained in section 6A(4) and to review the relevant evidence for a short-term marital relationship of less than three years’ duration. In the circumstances of this case, it is section 6B(2) that applies, not section 6B(3), because the Applicant and Mr Cook were never legally married to each other and such a relationship is predicated by section 6B(3)(b).
29. The Respondent contended that the Applicant is not to be regarded as ordinarily living with Mr Cook at the time of his death because the continuous period of ordinarily living together at the relevant time (28 July 1998) within section 6A(2) has been severed or broken by the separation of the Applicant and Mr Cook on 26 April 1998. The Applicant contended in its letter dated 14 July 2003 to ComSuper that the relationship between the Applicant and Mr Cook was continuing is that the date of Mr Cook’s death, saying “to suggest that the parties [sic] relationship ended at this point in time ignores the often cyclical nature of relationships in which domestic violence exists”.
30. The Tribunal observed that marital relationships span a continuum ranging from closely-connected couples with intense or strong emotional bonds to loosely-connected couples with weaker emotional bonds or ties. The Tribunal considered further that it is not solely the subjective assessment of the parties to the potential marital relationship that determines whether or not any two persons are in a marital relationship. Objective factors also have a bearing.
31. All relationships in the nature of marriage and marriage-like relationships reflect to a lesser or greater extent the imprint of a concept known as the consortium vitae. In Main v Main(1949) 78 CLR 636 at 643, Latham CJ, Rich and Dixon JJ approved the following passage describing the consortium vitae from an earlier decision of Cussen J in Tulk v Tulk [1907] VLR 64, at 65:
"In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognize it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties" (per Cussen J, Tulk v Tulk (1907) VLR 64, at p 65).
32. In the language of Mr Justice Watson of the Family Court in the case In the Marriage of Todd (No 2) (1976) 25 FCR 260 at 262-263, any separation requires that “one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed.” In the same case his Honour said (at 263):
“When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.”
33. In this case, the Tribunal is dealing with a quasi-matrimonial relationship (or a de facto relationship), but the underlying principles are the same where there is no legal marriage that is under scrutiny. The Tribunal was of the opinion that the concept of separation drawn from the underlying general law (including the law relating to domestic relations to the extent it is expressed in the Family Law Act 1975 (Cth)) is relevant to the operation of section 6A of the Act because that provision invokes by necessary implication some of the concepts found in the law of domestic relations. The Tribunal did heed the cautionary remarks of Mansfield J in Hornsby v Military Superannuation & Benefits Board of Trustees No 1 [2003] FCA 54 where his Honour cited Cohen J in George v Hibberson [1987] DFC 95 – 054 to the effect that concepts or considerations relevant to the Family Law Act 1975 (Cth) should not be imported uncritically into the De Facto Relationships Act 1984 (NSW) (at [26]). Nevertheless, the Tribunal noted that in both Hornsby v Military Superannuation & Benefits Board of Trustees No 1 and George v Hibberson, courts have drawn upon concepts and considerations from the Family Law Act 1975 or elsewhere in the general law in order to determine the meaning of well-established concepts such as separation and permanent and bona fide domestic basis when these are used or treated as elements in the determination of rights, duties, liabilities and responsibilities in other legislative settings.
34. In effect, the Applicant argued that the consortium vitae of the Applicant and Mr Cook had not been ruptured at the time of his death. The Respondent argued to the contrary. The Tribunal noted the contention of the Applicant’s lawyers that the cyclical nature of relationships in which domestic violence exists produces separations and reconciliations between the parties to those relationships. The Tribunal noted that no evidence of any kind (for example, empirical evidence, or the findings of well-conducted sociological research conducted by authoritative scholars or commentators or sponsored by institutions such as the Australian Institute of Family Studies or the Australian Research Council) has been adduced and marshalled in support of this assertion. Even if this evidence did exist in this case, then it would still have to be evaluated in the specific context of this case where the Applicant’s lawyers communicated to Mr Cook that the relationship between those two persons had terminated on 26 April 1998.
35. According to the Family Court of Australia in Todd (No 2), a separation between two parties to a marital relationship (and the Tribunal interpolates that this marital relationship can be a de jure relationship or a de facto relationship) requires the conjunction of two elements. The first element is the intention to separate and the second element is conduct consistent with that intention. Separation is a question of fact, and it is determined by comparing and contrasting the state of the marital relationship before the alleged separation and afterwards. Separation can be a departure from a state of things rather than from a particular place, especially where there is a separation under the one roof (see In the Marriage of Falk(1977) Fam LR 11,238 at 11,242-11,243 per Evatt CJ, Fogarty and Bulley JJ).
36. The findings of fact made by the Tribunal in this case indicate that a marital relationship did exist between the Applicant and Mr Cook, and that many of the indicia of a marital relationship (dwelling under the same roof and joint ownership of property), are present. This much is common ground between the parties. The fact in issue is, however, whether the marital relationship existed as at the date of Mr Cook’s death on 28 July 1998. After the separation on 26 April 1998, the Applicant and Mr Cook communicated to each other (whether in writing personally or through their lawyers), discussing procedures and processes for the resolution of a dispute about their jointly owned property. In view of the findings of fact made by the Tribunal in this case, the Tribunal is satisfied on the balance of probabilities that there was a marital relationship between the Applicant and Mr Cook up to 26 April 1998, that there was a separation between the Applicant and Mr Cook, that this separation took place on 26 April 1998 and that the Applicant’s lawyers communicated that separation to Mr Cook on 12 May 1998. In the opinion of the Tribunal, there is ample evidence in this case that points to a separation of the parties on 26 April 1998. From this baseline, the Tribunal concluded that the Applicant and Mr Cook had not been living with each other as husband and wife for a continuous period of at least three years as at 28 July 1998 within section 6A(2)(a) of the Act.
37. The Tribunal considered next the operation of section 6A(5) of the Act. Section 6A(5) deals with the situation when spouses are absent from each other. In the two sets of circumstances described in that provision, section 6A(5) treats the persons to be living with each other despite their absence from each other for the purposes of section 6A(1). The first circumstance is where there is a “temporary absence” of the relevant parties (section 6A(5)(a) refers). The second circumstance is where there is an “absence because of special circumstances (for example, absence because of the person’s illness or infirmity or a posting of the person)” (section 6A(5)(b) refers) The Applicant argued that the exceptions provided by section 6A(5) applied in her favour. The Respondent contested this argument.
38. The Tribunal considered the possibility of a temporary absence of the Applicant from the household of Mr Cook as at the time of his death within section 6A(5)(a). If found, a temporary absence within section 6A(5)(a) does not negate a marital relationship within section 6A(1) because when the two provisions are read side-by-side, the legislative intent is to treat a marital relationship as subsisting at a particular time despite any temporary absence. The Applicant and Mr Cook did not live together at the time of his death, and this might be said to constitute a temporary absence. On the basis of the evidence before it, the Tribunal’s findings of fact in this case indicate a statement communicated on behalf of the Applicant that her relationship with Mr Cook had ended on 26 April 1998, and that statement was made in the context of property settlement negotiations. This led the Tribunal to conclude that the Applicant and Mr Cook were not temporarily absent from each other at the time of his death. Accordingly, the Applicant cannot take advantage of the exception provided by section 6A(5)(a). Therefore, the Applicant is not taken to be living with Mr Cook as his wife on a permanent and bona fide domestic basis when Mr Cook died within section 6A(1).
39. The Tribunal went on to consider an absence because of special circumstances within section 6A(5)(b). In Gray and Defence Force Retirement and Death Benefits Authority [2004] AATA 450, SM Dwyer of this Tribunal construed “special circumstances” within section 6A(5)(b) in the same manner as this phrase has been construed in social security law, exemplified by the decision of the Full Court of the Federal Court in Beadle v Director General of Social Security (1985) 7 ALD 670 at 674 approving Re Beadle v Director-General of Social Security (1984) 6 ALD 1 (Toohey J, Mr Wilkins and Dr Billings), a decision of this Tribunal. The one difference between the meaning of “special circumstances” within social security law and the same concept when employed in section 6A(5)(b) is that some signposts to the possible meaning of special circumstances are provided within the provision itself (for example, absences caused by illness, infirmity or a posting). These legislative signposts may indicate a different meaning for special circumstances of the purposes of the Act than are indicated for the meaning that phrase in the social security legal arena (including the Social Security Act 1991 (Cth)), but it is not necessary to pursue that question in this case. An absence within section 6A(5)(b) may be of a duration longer than a temporary absence within section 6A(5)(a). The issue for the Tribunal to consider is whether the circumstances of this case support a special circumstances absence of the Applicant from the household of Mr Cook within section 6A(5)(b). The special circumstances enumerated within section 6A(5)(b) are illustrative, not exhaustive, so it is possible that other circumstances that cause an absence of two parties from their common household qualify as special. In Gray, the deceased member suffered an illness (depression) and had a gambling addiction. These circumstances were found to constitute a special circumstance. The precedential value of Gray is limited to providing an illustration of what amounts to a special circumstance.
40. The Tribunal considered whether there were any circumstances in this case that could qualify as special circumstances. In the evidence before the Tribunal, there are assertions that the Applicant was the victim of domestic violence perpetrated by Mr Cook. The Respondent contested whether there was any domestic violence as alleged. The Tribunal has found as a fact that on or about 20 July 1998, Mr Cook participated in a record of interview with members or members of the Northern Territory Police Service regarding the alleged contravention of a restraining order to the effect that Mr Cook was not to approach the Applicant. On the basis of the evidence before it, the Tribunal cannot make a finding concerning whether or not there was any domestic violence between the Applicant and Mr Cook. The Applicant’s lawyers have not put before the Tribunal any cogent first-hand evidence that Mr Cook was domestically violent towards the Applicant (although this assertion is made). The Tribunal noted that while it is not bound by the rules of evidence because of section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), nevertheless the Tribunal’s evidence-gathering processes and its adjudicative function operate in such a way as to require the Tribunal to base its decisions on logically probative evidence: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 and Casey v Repatriation Commission (1995) 39 ALD 34 at 38. The Tribunal accepted that absence induced by domestic violence could be a special circumstance within section 6A(5)(b). The Tribunal cannot go one step further in this case and conclude from the evidence before it that the absence of the Applicant from the household of Mr Cook was caused by domestic violence. Even if it was, there is evidence of a separation between the parties on 26 April 1998 that was followed by negotiations between the parties for a property settlement. This would seem to indicate a permanent rupture in the relationship between the parties and not an absence because of special circumstances. The Tribunal concluded that there is no special circumstances absence between the Applicant and Mr Cook within section 6A(5)(b).
Functus officio
41. The Applicant contended that the power of the Respondent to review the delegate's decision was spent after it made the 13 October 1998 decision. The resolution of this issue depends upon the nature and extent of the power conferred upon the Respondent by the legislation under which it was acting, namely the Act: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [3]; Minister for Immigration and Ethnic Affairs v Kurtovic(1990) 21 FCR 193 at 211 per Gummow J. The Applicant’s contention invokes the doctrine of functus officio, which is based upon the policy ground that which favours finality of proceedings: see Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-862 per Sopinka J (for the majority) and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [8] per Gleeson CJ. The doctrine of functus officio holds that once a decision-maker makes a decision, the decision-maker cannot resile from the earlier decision because the power to do so is spent or exhausted and the proposed second decision is ultra vires: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 per Gummow J; Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219 at 225; Jayasinghe v Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal(1997) 76 FCR 301.
42. It is necessary for the Tribunal to consider whether the Act precludes the Respondent from revisiting or reopening the 9 October 1998 decision. Part XI of the Act (comprising section 99 and which is set out earlier in these Reasons for Decision) contains the machinery for merits-based review of decisions of the Respondent. Two layers of review are provided in Part XI, namely internal review (reconsideration under sections 99(2) – (5)) and external review (review by this Tribunal under section 99 (6)). It is not just Part XI of the Act that is relevant to the applicability of the functus officio doctrine in this case. It is also necessary for the entire Act to be considered, including the machinery for the provision and payment of death benefits under Part VI. Forensically and tactically, the burden is on the Respondent to displace the functus officio doctrine. The Respondent argued that, in combination: (1) section 33(1) of the Acts Interpretation Act 1901 (Cth); and (2) a proper reading of section 39 of the Act allows the power under that provision to be exercised from time to time or on an on-going basis; and (3) the rebuttable nature of the functus officio doctrine displaced that doctrine from applying this case.
43. The Tribunal considered that in the High Court has signalled that circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [8]. The issue is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the decision-maker discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the decision-maker may revisit the exercise of its powers or reconsider the whole matter afresh? (see Bhardwaj at [8]). In this case, the Tribunal is satisfied that the Respondent did not discharge the function committed to it by the Act when on 9 October 1998, it made the original decision to grant the pension to the Applicant because the basis for that decision (the marital relationship between the Applicant and Mr Cook) was not grounded in fact. The second matter for inquiry is whether the Act provides, expressly or by implication, whether, and if so, in what circumstances, a failure to discharge its functions means that the Respondent may revisit the exercise of its powers or reconsider the whole matter afresh. The second question is a function of the interpretation and operation of the Act.
44. On a reading of the Act as a whole, the Tribunal was not able to identify any machinery which permitted or prevented the Respondent from reopening a decision beyond jurisdiction. In particular, the scheme of Part XI is sparse in terms of the detail it provides for internal and external review of decisions of the Respondent. Part XI provides basic machinery for review of decisions. Part XI contains no machinery enabling, for example, dissatisfied persons to seek judicial review of decisions in terms of their legality or lawfulness (such judicial review could take place dehors the Act under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or under section 75(v) of the Commonwealth of Australia Constitution), or for independent merits-based determination or adjudication of contested entitlements by a specialist tribunal or adjudicator besides the processes provided by section 99 itself. When the Respondent proceeded as it did in relation to the 12 June 2003 decision, the Applicant was afforded an opportunity, as required by section 99(2) of the Act, to request internal reconsideration of the decision, which the Applicant did on 14 July 2003 (T50). The Respondent acted on that request, and this led to the reviewable decision of 6 February 2004 (T63). It is the underlying general law and the scheme and policy of the Act as a whole that answers the second question posed earlier. It is the view of the Tribunal that by implication, the Act provides an invalid decision of the Respondent that is in law no decision at all may be reopened and made afresh. Consequently, the Tribunal is of the opinion that the functus officio doctrine does not apply in this case to preclude the Respondent from proceeding as it did in relation to the 12 June 2003 decision.
The allegation of misrepresentation by the Applicant
45. The Respondent contended that in the Applicant’s dealings with the Respondent concerning the claim for a spouse’s pension under section 39 at the Act, the Applicant misrepresented that she was in a marital relationship with Mr Cook. From this baseline, the Respondent argued that if the Respondent was this decision was based upon the Applicant’s misrepresentation, then the original decision was no decision in law at all. It was therefore appropriate for the Respondent to make the reviewable decision on 13 February 2004: Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11. This contention of the Respondent is its attempt to outflank the functus officio argument of the Applicant. As indicated earlier in these Reasons for Decision, the Tribunal is of the opinion that the functus officio argument of the Applicant fails. Nevertheless, the Tribunal proceeded to consider the Respondent’s contention in relation to misrepresentation. The Tribunal noted that no particular definition of misrepresentation was advanced by the Respondent, and the Tribunal took misrepresentation to be its general law meaning of a representation which does not accord with the true facts (past or present): Butterworths Concise Australian Legal Dictionary (Butterworths, Sydney, 1997), p 261.
46. In Bhardwaj, the High Court of Australia (by majority) held that the general law is that a decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all (at [51] per Gaudron and Gummow JJ, McHugh J agreeing; Gleeson CJ, Hayne and Callinan JJ reasoned to similar effect). In this case, the jurisdictional error is whether, either as an error of fact or as an error of law, the Respondent exercised its powers wrongly when making its decision on 9 October 1998. Put another way, the jurisdictional fact doctrine is that if the Respondent is to pay the Applicant a spouse’s pension under section 39 of the Act, then the Respondent has to be satisfied as a condition precedent that the Applicant is in fact a surviving spouse within section 6B (Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135). In this case, some evidence came to light that questioned the entitlement of the Applicant to a spouse’s pension after the original decision on 9 October 1998 was made. In the opinion of the Tribunal, it does not matter whether the reason why the Respondent proceeded as it did leading up to 9 October 1998 was because of any actionable misrepresentation by or on behalf of the Applicant. The Tribunal considered that the Applicant disclosed all of the material facts to substantiate a claim for a spouse’s pension, and that there was no misrepresentation. The operative fact that led to the Respondent reconsidering its 9 October 1998 decision was the 26 April 1998 separation of the Applicant and Mr Cook. The 9 October 1998 decision of the Respondent was tainted by jurisdictional error in the nature of an error of fact.
47. A decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all: Bhardwajat [51] and [53]; Chandler v Alberta Association of Architects [1989] 2 SCR 848. The Tribunal is of the opinion that the 9 October 1998 decision of the Respondent was, in law, no decision at all and that the duty to make a decision about the Applicant’s pension entitlements under section 39 of the Act remained unperformed. Section 33(1) of the Acts Interpretation Act 1901 (Cth) does not take this matter any further.
Allegation of bias
48. The Applicant contended that the Respondent was biased against the Applicant. The Applicant did not make any specific submissions on bias, and reserved its right to do so in any subsequent submissions. The bias contention of the Applicant was not fitted into any specific legal or administrative framework, and no primary facts were asserted that were suggestive of bias. The Tribunal took the bias contention to mean the Respondent had not accorded the Applicant procedural fairness in the sense that the Respondent in making administrative decisions is subject to a common law duty to act fairly: Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550. The freedom from bias rule (which is one of the fundamental norms or canons of administrative law) is that a decision maker should not be a judge in his or her own cause. Three tests have been developed and applied by the courts over the years in fleshing out the freedom from bias rule: (1) the reasonable likelihood of bias test (R v Australian Stevedoring Industry Board; ex p Melbourne Stevedoring Co Pty Ltd(1953) 88 CLR 100); (2) the reasonable apprehension of bias test (Re Media, Entertainment and Arts Alliance; ex p The Hoyts Corporation [1993] HCA 41; and (3) the actual bias test (Sun Zhan Qui v Minister for Immigration and Ethnic Affairs(1997) 81 FCR 71 at 127 per Burchett J and per North J at 134).
49. The Tribunal considered the issue of bias in this case, admittedly without the benefit of detailed submissions on the point provided on behalf of the Applicant. Simply because the Respondent acted upon a communication from the daughter of Mr Cook in making the 12 June 2003 determination is not of itself indicative of bias. The Tribunal noted that the Respondent communicated to the Applicant its intention to reconsider the 9 October 1998 decision by letters to the Applicant’s lawyers on 12 March 2003 and 20 May 2003 (T46 and T49). The Applicant did not respond to those communications from the Respondent. The Applicant was given the opportunity to be heard on the proposed redetermination. The Tribunal is not satisfied, based upon the material before it, that there is any evidence of bias in the dealings between the Respondent and the Applicant leading up to the 12 June 2003 determination. Simply because a decision-maker in the position of the Respondent made a decision adverse to the interests of the Applicant is not of itself indicative of bias.
Issue estoppel
50. The Applicant also argued (citing Wiest) that the doctrine of issue estoppel precluded the Respondent from reopening the 9 October 1998 decision which the Respondent did on 12 June 2003 by way of the determination of the same date. Issue estoppel is the principle that holds that once an issue of law or fact has been resolved between parties, this issue cannot be raised again by the same parties: House v Department of Defence (1996) 65 FCR 94. Issue estoppel (and its cognate doctrine, res judicata) apply when a court or a tribunal makes a bilateral adjudicative decision, that is, the resolution of a question between parties: Wiest. In the opinion of the Tribunal, issue estoppel does not arise in this case because there is no bilateral adjudicative decision. Instead, there is only a unilateral adjudicative decision, and thus the doctrine of issue estoppel does not come into operation.
Ultra vires
51. In the context of its functus officio contentions, the Applicant contended that the later 12 June 2003 determination was ultra vires. This contention falls away because, as the Tribunal has decided, the functus officio doctrine did not preclude the Respondent from making the 12 June 2003 determination. It was not necessary for the Tribunal to consider the ultra vires contention any further in the context of this case.
Procedural fairness and the 12 June 2003 decision
52. The Tribunal noted that on 20 May 2003, the Respondent wrote to the lawyers for the Applicant inviting the Applicant to submit any further evidence or material for the Respondent to consider as part of the process of revisiting the Applicant’s entitlement to a section 39 pension. Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it: Kioa v West (1985) 159 CLR 550 at 569-570 per Gibbs CJ, 582 per Mason J, 602 per Wilson J, 628 per Brennan J, 633 per Deane J; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR at 85; Bhardwajat [40] per Gaudron and Gummow JJ. The opportunity to answer the case must be a reasonable opportunity: Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 519 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ. The Tribunal is satisfied on the evidence before it that the Respondent accorded procedural fairness to the Applicant and that the Applicant had a reasonable opportunity to answer the contention of the Respondent that she was not in a matrimonial relationship with Mr Cook at the time of his death.
Tribunal’s Conclusion
53. On the basis of the evidence before it, and for these Reasons, the Tribunal concludes that the Applicant is not a “spouse who survives a deceased person” under section 6B of the Defence Force Retirement and Death Benefits Act 1973.
Tribunal’s Decision
54. The Tribunal affirms the decision under review.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: S Appleton
Associate
Date/s of Hearing Matter heard on the papers
Date of Decision 9 November 2004
Solicitor for the Applicant Davis Norman
Solicitor for the Respondent Australian Government Solicitor
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