Salton v Commonwealth Superannuation Corporation

FEDERAL COURT OF AUSTRALIA

Salton v Commonwealth Superannuation Corporation [2013] FCA 12

Citation:		Salton v Commonwealth Superannuation Corporation [2013] FCA 12
Appeal from:		Salton and Commonwealth Superannuation Corporation [2012] AATA 305
Parties:		NARELLE SALTON v COMMONWEALTH SUPERANNUATION CORPORATION
File number:		ACD 44 of 2012
Judge:		ROBERTSON J
Date of judgment:		18 January 2013
Catchwords:		ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – spouse pension under Defence Force Retirement and Death Benefits Act 1973 (Cth) – applicant and deceased married but not living together – whether marital relationship at time of death – whether applicant was taken to be living with the deceased – whether absence because of special circumstances – deceased’s persecutory delusions and alcoholism
Legislation:		Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 3(1), 6A(1), 6A(5)(b), 6B(2), 6B(3), 6BA and 39
Cases cited:		Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 referred to Main v Main (1949) 78 CLR 636 considered East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 referred to
Date of hearing:	18 December 2012
Place:	Canberra
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	61
Counsel for the Applicant:	Ms JAD Needham SC
Solicitor for the Applicant:	Howes Kaye Halpin
Counsel for the Respondent:	Mr APB Dillon
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 44 of 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	NARELLE SALTON Applicant
AND:	COMMONWEALTH SUPERANNUATION CORPORATION Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	18 JANUARY 2013
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1.The appeal be dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 44 of 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	NARELLE SALTON Applicant
AND:	COMMONWEALTH SUPERANNUATION CORPORATION Respondent

JUDGE:	ROBERTSON J
DATE:	18 JANUARY 2013
PLACE:	SYDNEY (VIA VIDEO LINK TO CANBERRA)

REASONS FOR JUDGMENT

Introduction

1. This appeal is from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 21 May 2012 affirming the decision under review that Ms Salton was not entitled to a spouse benefit under the Defence Force Retirement and Death Benefits Act 1973 (Cth) (the Act).

2. The facts shortly stated, as found by the Tribunal, are that Ms Salton is the widow of Mr Dixon. Mr Dixon died on 2 October 2009. Ms Salton and Mr Dixon were married on 11 August 1979. They had two children, a son born in 1981 and a daughter born in 1985. Mr Dixon served in the Australian Army from 1963 to 1971, left the Army for a short while, but rejoined the armed services in the Royal Australian Air Force and served between 1971 and 2002. He was compulsorily retired in 2002, aged 55 years. In October 1991 Ms Salton and Mr Dixon separated and Ms Salton left the…