Pearce v Hornsey

Re: DOROTHY LYNETTE PEARCE
And: JANE WILSON HORNSEY and COMMISSIONER FOR SUPERANNUATION
No. T G13 of 1990
FED No. 261
Superannuation
29 FCR 239
(1991) 39 IR 242

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Superannuation - definition of "spouse" of deceased eligible employee - married persons living apart at time of death - whether "but for absence resulting from illness" they would have been together at time of death - mental illness - decision of Administrative Appeals Tribunal - whether error of law in decision.

Superannuation Act 1976, ss. 3(1) and (2)

HEARING

SYDNEY

#DATE 17:5:1991

Counsel for the appellant: M. Hodgman QC with J. Avery

Instructed by: Avery Abel

Counsel for first respondent: P. Slicer QC with T. Kohl

Instructed by: Butler McIntyre and Butler

Counsel for second respondent: J. Karkar QC with D. Wilson

Instructed by: Australian Government Solicitor

ORDER

Appeal dismissed.

Appellant to pay first respondent's costs.

No order as to the costs of the second respondent.

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

JUDGE1

This is an appeal from the Administrative Appeals Tribunal. The question which fell to be decided by the Tribunal was whether Dorothy Lynette Pearce was entitled to be treated as the spouse of John Neville Dawson ("the deceased") and therefore entitled to benefits under Part VI of the Superannuation Act 1976 ("the Act"). Mrs Pearce was married to the deceased at the time of his death but thereafter she remarried. It will be convenient to refer to her in these reasons by her former name, Mrs Dawson.

On 24 November 1987 the Commissioner for Superannuation granted a claim by Mrs Dawson that she be treated as the spouse of the deceased and therefore entitled to benefits under Part VI of the Act. That decision necessarily involved a rejection of a claim by Mrs Hornsey (who was married to the deceased before he married Mrs Dawson) for orphan's benefits in respect of the children of her marriage with the deceased. Notwithstanding the rejection of this claim, the children became entitled to lesser benefits under the Act.
At the request of Mrs Hornsey, the Commissioner reconsidered his decision pursuant to s.154(2) of the Act and on 28 February 1990 he confirmed it. Mrs Hornsey thereupon exercised her right to have the Commissioner's decision reviewed by the Administrative Appeals Tribunal.
In s.3(1)(a) of the Act "spouse" is, for relevant purposes, defined as follows:

"spouse, in relation to a person who has died and was, at the time

of his death, an eligible employee or a retirement pensioner, means -

(a) a person who was legally married to the deceased

person at the time of the person's death and who, at

that time, was living with the person on a permanent

and bona fide domestic basis."

Section 3(2) qualifies that definition in the following terms:-

"Where the Commissioner is of the opinion that a person, would, but for a temporary absence or an absence resulting from illness or infirmity, have been living with another person at any time on a permanent and bona fide domestic basis, the first-mentioned

person shall, for the purposes of the definition of `spouse' in sub-section (1) of this section, and of section 9, be deemed to have been living with the other person on a permanent and bona fide domestic basis at that time."

In the proceedings before the Administrative Appeals Tribunal it was conceded that Mrs Dawson was not a person who could be deemed to have been living with the deceased at the time of his death but for a temporary absence. Thus it was common ground before the Tribunal that the basic question for its determination was whether it was of the opinion that, but for an absence resulting from illness, Mrs Dawson would have been living with the deceased on a permanent and bona fide domestic basis at the time of his death.
The deceased was born in 1943 and married Mrs Dawson on 23 February 1980. For many years prior to his death he was employed by the Department of Transport and Communications as a radio technical officer. During the last ten years of his previous marriage (to Mrs Hornsey) he developed signs of progressive alcoholism which merged into psychotic problems resulting in admissions to an alcohol and drug dependency institution on three occasions during 1980. He was at first diagnosed as schizophrenic but was later classified as suffering a bipolar affective disorder. He became a patient of Dr Wilson, a senior psychiatrist employed by the Mental Health Services Commission. According to Dr Wilson the deceased had manic phases and was more often depressed than elated. Mrs Dawson complained to him of her husband's irresponsibility in the marriage and of his occasional violence towards her. There were five occasions prior to 1987 when the deceased was admitted to hospital for periods of between 10 and 25 days. On each occasion he was treated with drugs for depression, mania or alcohol abuse.
On 16 February 1987 Mrs Dawson persuaded police officers to take her husband to Royal Hobart Hospital. He was sent from there to Royal Derwent Hospital. On 25 February when he was insisting on being discharged from hospital against medical recommendation, Mrs Dawson said she would not have him at the matrimonial home. He therefore left the hospital of his own accord, against medical advice, and went to a cottage at Dunalley owned by him. He lived at that address until 5 August 1987 when he voluntarily admitted himself to Royal Hobart Hospital. He was on day leave from that hospital when he committed suicide on 23 August.
On 9 October 1986 Mrs Dawson gave her solicitor information for the purpose of receiving advice as to her entitlements in the event of a breakdown in her marriage. The Tribunal was of the opinion that Mrs Dawson was then preparing herself for the probable failure of the marriage. However, she made an attempt to save the marriage by attending counselling at the Family Court which led to the preparation of a written agreement on 16 October 1986. The deceased failed to comply with a term of the agreement that he would continue to attend counselling sessions.
The Tribunal found that the deceased and Mrs Dawson did not live together on a permanent bona fide domestic basis at any time between 16 February and 23 August 1987. It also found that their separation as a married couple began much earlier than that. There was evidence that Mrs Dawson told her solicitor that after 5 September 1986 she slept by herself on a couch in her home, and that so far as she was concerned the marriage was over. She complained to her solicitor of threatened violence and abuse which she maintained was due to her husband's mental condition aggravated by alcohol.
Although Mrs Dawson gave evidence to the Tribunal that she lived with her husband as man and wife between October 1986 and 7 February 1987, the Tribunal was not satisfied that during that period there was a continuing bona fide domestic relationship between them.
The Tribunal found that whether the termination of the domestic relationship occurred in September 1986 or February 1987 there was no doubt that it did not resume in any respect after the deceased went to reside at Dunalley on 25 February 1987. The Tribunal was satisfied that Mrs Dawson's decision to terminate the marriage relationship was occasioned in large measure by the effects of her husband's mental illness upon her, which rendered her no longer able to cope with its consequences.
Mrs Dawson consulted her solicitor on four occasions in March 1987. The Tribunal was of the opinion that by that time, if not before, Mrs Dawson had made up her mind that her only course was to move for a final settlement of all property and financial matters. In a letter written by Mrs Dawson's solicitor to her husband's solicitor on 2 April 1987, her solicitor spoke of her own knowledge of the previous difficulties in the marriage and of attempts at reconciliation and said: "Unfortunately this time the marriage has irretrievably broken down and as there appears to be an imminent sale of the home it would be in the parties' interest that that go ahead and the joint debts discharged before distribution of the proceeds."
On 2 March 1987 Mrs Dawson discussed with her husband the sale of the family home. The Tribunal thought there was little doubt that Mrs Dawson was resolved to treat the marriage as finished from this time on. It recognised that during the months of March and April the deceased earnestly desired reconciliation and made moves in that direction, including writing his wife letters, seeking forgiveness for his conduct and meeting her with some frequency at church. Shortly before his death, he expressed his disappointment to Dr Wilson about the lack of a reconciliation with his wife. In its reasons the Tribunal said there could be no stronger indication against the possibility of reconciliation than the fact of the deceased's suicide which was, in its opinion, a final demonstration of his acceptance that his wife would not agree to a reconciliation.
Dr Wilson gave evidence as to his assessment of the likelihood of a reconciliation. He said that he did not think it was a likely outcome after March 1987 as Mrs Dawson had expressed the view that she could no longer have her husband home. He did not think there were any possible circumstances that would lead to a reconciliation.
It was put to the Tribunal that Mrs Dawson remained hopeful throughout the period of separation in 1987 that a reconciliation could occur if her husband's mental condition improved. But the Tribunal was of the opinion that whilst this may have been true as at March and April 1987, it was apparent that any hope for an improvement in the deceased's mental condition disappeared by the end of April that year.
The Tribunal did not accept evidence given by Mrs Dawson that she continued to see her husband at least every week until his death. It found that after March 1987 Mrs Dawson made no further effort to consult with Dr Wilson concerning her husband's health, made no effort to respond to her husband's repeated request for conciliation and repeatedly affirmed her desire for a full and final settlement of all financial and property affairs.
Mrs Dawson commenced living in a de facto relationship with Mr Pearce in 1987 and they eventually married in October 1988. The Tribunal found the sexual relationship between the couple commenced on 10 February 1987, i.e. six months before Mr Dawson's death. Mrs Dawson described the relationship as "nothing more than an affair". The Tribunal was satisfied that the relationship was pursued during the months following February 1987 with considerable regularity and was maintained in secrecy. It concluded that Mrs Dawson's resolve to terminate the marriage was continually reinforced by the existence of her close relationship with Mr Pearce.
The Tribunal was of the view that Mrs Dawson had resolved by April 1987 that she was no longer interested in attempting to save the marriage which she regarded as finished.
On the basis of the above findings, the Tribunal considered the likelihood of the parties living together on a permanent bona fide basis at the time of death "but for an absence resulting from illness" as referred to in s.3(2) of the Act. It concluded that the absence which began as a result of illness did not continue for that reason alone. It said:
"Illness never prevented the resumption of cohabitation after
the deceased was discharged from Royal Derwent. The only fact
which prevented his return was the clearly expressed refusal of
his wife to entertain such a prospect. True, in the broad sense,
the absence continued to result from illness because that is what
began it, but it continued for an even more cogent reason, i.e.
the decision of Mrs Dawson to finalise all matters which touched
upon the marriage relationship including the sale of the
matrimonial home, the equitable distribution of all chattels, and
the maintenance of a regular sexual relationship with another man,
albeit without the knowledge of her husband."
Counsel who appeared before the Tribunal urged it to adopt some test to determine whether there was an absence resulting from illness at the time of death. One such test was said to be whether the illness was the "proximate or direct cause" of the absence. Another test was said to be whether the illness remained "the underlying" reason for the absence regardless of Mrs Dawson's association with Mr Pearce. Yet another test was said to be whether illness was the "substantial" cause of the absence. In relation to these submissions, the Tribunal said that it preferred not to select any epithet to describe the nature of the cause of the absence because it was unnecessary to do so. It said it was not concerned to ascertain how many causes there were for the absence of cohabitation at the time of death. It considered that its task was to form an opinion whether there was, as at the time of death, a likelihood of resumption of cohabitation if absence resulting from illness were removed. It said:
"76. What must be remembered is that we are not endeavouring
to ascertain how many causes there were for the existence of an
absence from cohabitation at the time of death, but whether in our
opinion there was at that time a likelihood of resumption of
cohabitation if absence resulting from illness were removed.
77. If it is conceded that when the separation began there was
an immediate `absence resulting from illness', it still remains to
determine whether the addition of other factors contributing
materially to the continued absence precludes the possibility of a
finding that but for the absence resulting from illness the
necessary state of cohabitation would have been resumed. An
answer to that question must depend on the nature of and the
weight to be attributed to the additional factors.
78. We have found two such weighty factors one of which merges
in the other. The existence of the relationship with Mr Pearce
was itself a factor which must have contributed to Mrs Dawson's
basic decision i.e. to terminate her marriage for all practical
purposes. The nature of that decision, accepted as final and
precluding as it did any real possibility of resumption, was of
itself sufficient to provide an answer to the question posed by
the statute. The Tribunal could not conceivably find likelihood
of a resumption of the marriage if it were satisfied that one
party to the marriage had in reality so firmly rejected any
reasonable possibility of its continuance. It is our view and
therefore Mrs Dawson must fail to qualify as a `spouse'."
To succeed in this Court Mrs Dawson must show an error of law in the Tribunal's decision: vide s.44(1) of the Administrative Appeals Act 1975. Counsel for Mrs Dawson submitted that the Tribunal erred in law in failing to adopt one of the tests put to it in argument for the purpose of determining whether, on the facts of the present case, there was an absence resulting from illness. I do not think the Tribunal erred in failing to adopt any of the tests relied upon by counsel. As it observed in its reasons, the Act does not use the words suggested by counsel to identify the test to be applied in determining whether, on the facts of any particular case, there is an absence resulting from illness. It was not for the Tribunal to add words to the statute and then interpret them against the background of the facts found by it.
It was further submitted that the Tribunal took an unduly censorious view of Mrs Dawson's association with Mr Pearce and attached too much significance to it. But it was for the Tribunal to assess the weight which should be attached to the association. It was undoubtedly a relevant matter to be taken into account.
In my opinion it has not been demonstrated that the Tribunal erred in law in arriving at its decision. Its findings of fact were well open to it. Those findings of fact justified its conclusion that there was no likelihood of a resumption of the marriage and that Mrs Dawson had firmly rejected the possibility of its continuance. It was open to the Tribunal to form the opinion that, as at the date of death, factors other than the deceased's mental illness had so affected the situation of the parties to the marriage that cohabitation would not have been resumed even in the absence of that illness.
No doubt it will be difficult in many cases to reach an opinion whether a person would, but for an absence resulting from illness, have been living with another person at the time of his death on a permanent and bona fide domestic basis. In some cases the facts may point irresistibly one way. In other cases, of which the present is one, they may not. In each case it is a question for the decision-maker to decide whether the requisite opinion should be formed. If a refusal to form the opinion is supportable by the facts, it will not be erroneous in law merely because another view of the facts is open. As was said by Brennan J. in Waterford v The Commonwealth (1987) 163 CLR 54 at 77: (t)here is no error of law simply in making a wrong finding of fact." See also, Reg. v District Court; Ex parte White (1966) 116 CLR 644 at 654 per Menzies J. and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason C.J. Of course the position will be otherwise if the decision-maker misdirects himself as to the nature of the opinion which he is called upon to form: cf. Commissioner for Superannuation v Scott (1987) 71 ALR 408. But that did not happen in the present case.
It was submitted on behalf of Mrs Dawson that once it was shown that her original absence from her husband resulted from his illness, the presumption that the absence continued to result from that illness could only be displaced if it was established that her husband's continuing illness played no part in her continuing absence. I do not think this submission is correct. No doubt the fact that the original absence resulted from illness was an important matter to be taken into account. But it was only one of the matters which were relevant to the question whether the opinion referred to in s.3(2) of the Act should be formed or not.
Counsel for the Commissioner submitted that s.3(2) of the Act directs the Commissioner to consider all the circumstances of the particular case, except the circumstance of temporary absence or absence due to illness, and to form an opinion whether the husband and wife would have been living with each other at any particular time (including the time of death) on a permanent and bona fide domestic basis. He submitted that the words "but for" in the sub-section do not require the Commissioner to form an opinion whether the marital separation was caused or contributed to by temporary absence or absence due to illness but are designed to except from the Commissioner's consideration temporary absence or absence due to illness. He distinguished the use of the words "but for" in contexts where they have a causative meaning: cf. Repatriation Act 1920, s.101(1A) and Repatriation Commission v Law (1980) 29 ALR 65 and on appeal 147 CLR 635. The distinction made by counsel is a fine one, but I think it is valid.
I confess to having considerable sympathy for Mrs Dawson. It is apparent she must have suffered much distress in her marriage by reason of Mr Dawson's mental illness. Her association with Mr Pearce, whilst Mr Dawson was alive, was relatively brief. The fact that she sought comfort in an association outside her marriage is, under the circumstances, readily understandable. Another decision-maker may have reached an opinion different from that reached by the Tribunal. But that is not to say that the Tribunal erred in law or that this Court would be justified in setting aside the Tribunal's decision.
In the result, the appeal must be dismissed. The appellant must pay the first respondent's costs. Since the second respondent does not seek an order as to costs, there will be no order as to his costs.

[1991] FCA 261

17 MAY 1991