Salton v Commonwealth Superannuation Corporation
[2013] FCA 12
•18 January 2013
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 toDate 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
ApplicantAND: 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
ApplicantAND: COMMONWEALTH SUPERANNUATION CORPORATION
Respondent
JUDGE:
ROBERTSON J
DATE:
18 JANUARY 2013
PLACE:
SYDNEY (VIA VIDEO LINK TO CANBERRA)
REASONS FOR JUDGMENT
Introduction
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).
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 matrimonial home. They remained married at the date of Mr Dixon’s death.
The Tribunal identified the argument for Ms Salton as being that Mr Dixon, at least since the late 1980s, was suffering from delusional persecutory disorder and substance abuse. These were the initial reasons Ms Salton left the marital home and were the reasons she said she maintained the separation. The conditions worsened over time, particularly after Mr Dixon left the armed forces. Her claim was that the couple were separated due to illness and but for that illness the couple would have continued to be living together on a permanent and bona fide domestic basis at the time of Mr Dixon’s death in 2009.
The Tribunal identified the first issue as being whether the diagnoses provided by a Dr Morris correctly identified delusional disorder (persecutory type) and alcohol dependence with physiological dependence as the conditions from which Mr Dixon was suffering.
The Tribunal was satisfied that Dr Morris’s diagnosis as to delusional disorder was correct but found that the condition did not, on the evidence, impact significantly on Mr Dixon’s behaviour towards Ms Salton in the period between 1993 and 2002.
The Tribunal found that Dr Morris gave secondary status to the condition of alcohol dependence. The Tribunal found that Mr Dixon was suffering from alcohol dependence which increased during the course of his marriage with Ms Salton and continued until his death.
The Tribunal found that Mr Dixon’s delusional disorder may have become manifest from 1988, and certainly worsened during the seven years from his discharge in 2002 till his death in 2009. However, the evidence prior to 2002, and during the 1990s, did not enable the Tribunal to be satisfied that but for Mr Dixon’s mental conditions and his alcoholism, Mr Dixon and Ms Salton would have been likely to have been living together in a bona fide domestic relationship at the time of his death. The length of their separation, Mr Dixon’s tendency to be a loner, and to lose his temper, personality traits not demonstrably due to Mr Dixon’s psychiatric conditions, and Ms Salton’s reconciliation to her position as a single parent also contributed to the separation.
Notice of appeal
The notice of appeal, filed on 18 June 2012, stated the grounds in the following form:
1.The Tribunal erred in law in its finding that the deceased’s persecutory delusions and his alcoholism did not constitute special circumstances within the meaning of section 6A(5)(b) of the Act.
2.The Tribunal erred in law in taking into account the intention of the Applicant or deceased in resuming living with each other as intent is an irrelevant consideration for the purposes of section 6A(5)(b) of the Act.
3.The Tribunal erred in law in asking itself whether the Applicant and the deceased were separated at the relevant time.
4.The Tribunal erred in law in failing to take into account that the applicant and the deceased were legally married at the time of the deceased’s death.
5.The Tribunal erred in law in taking into account the general meaning of a marital or couple relationship in circumstances where the Applicant and the deceased were legally married at the time of the deceased [sic] death.
6.The Tribunal erred in law in failing to properly construe and apply sections 6A(1) and 6A(5)(b) of the Act.
There was also a notice of contention, filed by the respondent on 10 July 2012, in the following terms:
The Respondent contends that the Tribunal misconstrued the test in s 6A(5(b) of the Defence Force Retirement and Death Benefits Act 1973 … when it stated in [40] that ‘That section provides that a person is taken to be in a marital relationship if [CSC]…is satisfied that the person would not have been separated from the other person at the time of death of the member but for ‘an absence because of special circumstances, [namely], the person’s illness.’
The statutory provisions
I turn next to the statutory provisions.
Section 39 of the Act provides that where a member of the scheme who is a recipient member dies and is survived by a spouse then, subject to ss 47 and 75, the spouse is entitled to a pension at a specified rate.
There was no dispute that Mr Dixon was a recipient member.
“Spouse” is defined in s 3(1) of the Act as having a meaning affected by s 6B. Section 6B(2) provides that for the purposes of the Act, “a person is a spouse who survives a deceased person if the person had a marital or couple relationship with the deceased person at the time of the death of the deceased person.” (Emphasis added)
A claim based on s 6B(3), that Ms Salton had previously had a marital relationship with Mr Dixon; did not, at the time of the death, have that marital relationship but was legally married to the deceased person; and, in the decision-maker’s opinion, Ms Salton was wholly or substantially dependent upon the deceased person at the time of the death, was not pressed before the Tribunal and did not form part of the present appeal before the Court.
Section 6A is the provision central to this appeal and I set it out in full. It defines a “marital or couple relationship”, the expression used in s 6B(2). I note also that s 3(1) provides that “marital or couple relationship” has the meaning given by s 6A.
6A Marital or couple relationship
(1)For the purposes of this Act, a person had a marital or couple 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 or partner 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 or partner 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 or partner 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 or partner 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 or partner 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 or couple 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;
(ba)the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901, as a kind of relationship prescribed for the purposes of that section;
(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;
or
(iii) a child of both of the persons for the purposes of the Family Law Act 1975;
(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 CSC 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).
“CSC” is short for Commonwealth Superannuation Corporation and has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011 (Cth).
Consideration
The structure of the provision is reasonably clear. I note first that the relevant time appears to be the time of death, here 2 October 2009. I consider more fully below the applicant’s argument to the contrary. Next I note that s 6B(2) asks if the person had a “marital … relationship” at that time. Third, s 6A prescribes what that means for the purposes of the Act: for present purposes it means ordinarily lived with that other person as that other person’s wife on a permanent and bona fide domestic basis at that time. Fourth, “living with” is subject to the deeming provision in s 6A(5) and states that the decision-maker (not the Court) may be satisfied that the absence there referred to was because of special circumstances. In the present case Mr Dixon’s illness was put forward.
I reject the submission, which was common to both the applicant and the respondent, at least in their written material, that the Tribunal held that Mr Dixon’s persecutory delusions and his alcoholism did not constitute special circumstances within the meaning of s 6A(5)(b) of the Act. It seems to me to be plain from the Tribunal’s reasons that the Tribunal proceeded, albeit implicitly as there does not seem to have been an express finding on the point, that his illness did constitute special circumstances. In light of the terms of s 6A(5)(b), which expressly gives the person’s illness as an example of special circumstances, there would, in my opinion, have to have been either an express finding or a finding by necessary implication that Mr Dixon’s illness was not within the concept of “special circumstances” before I would conclude that the Tribunal had made such a finding.
Counsel for the applicant accepted that the applicant’s grounds of appeal fed off two questions of construction and I shall deal with those questions first since plainly they give rise to questions of law.
The first question is the meaning of the phrase “at a particular time” in s 6A of the Act. The applicant submitted that those words in s 6A(1) need not necessarily mean at the time referred to in s 6B. This seemed to be related to the submission that the question “if that absence had not occurred, would they still be living together” had to be asked, in effect, as at the date of the beginning of the absence and not as to later intervening factors, because the section deemed the situation prior to the absence occurring to continue. Thus, the applicant submitted, the Tribunal should have looked at the relationship prior to the absence and asked the question, if that absence had not occurred, would they still be living together? The applicant submitted that the “particular time” was the time of the absence because of special circumstances. Reliance was placed on the use of the phrase in s 6A(1) “a particular time” rather than “at the date of death”.
In my opinion, it is clear that the question posed by s 6B(2) in the present case is whether Ms Salton had a marital or couple relationship, as defined, with Mr Dixon, the deceased person, at the time of Mr Dixon’s death. If she did have a marital relationship with Mr Dixon at the time of his death then, for the purposes of the Act, she was a spouse who survived the deceased person. On the facts of the present case “at a particular time” in s 6A(1) can only mean at the time of Mr Dixon’s death.
I asked counsel for each party why the expression “at a particular time” was used in s 6A(1) if it always meant at the time of the death of the deceased person. Neither counsel pointed to an answer. If there were no answer then that was some support for the applicant’s position.
However, in my view, an answer is readily found and it is that, in closely connected sections which use the expression “marital or couple relationship”, the time at which the question of such relationship is required to be answered is not always at the time of the death of the deceased person. Thus the more general expression “at a particular time”" is apt to pick up those other instances where the substantive provision poses the question of “marital or couple relationship” but at a different time to the time of the death of the deceased person.
One such example is in s 6B(3)(a): one of the qualifications for the application of s 6B(3) is if the person had previously had a marital relationship with the deceased person but did not have a marital relationship with the deceased person at the time of the death.
A second example is in s 6BA which poses the question when the marital relationship began and whether it did so after the recipient member became a recipient member, after the recipient member reached 60 and whether it continued for a period of less than three years up to the time of the deceased member’s death.
It is therefore plain that, at least to that extent, “at a particular time” has an ambulatory operation. That expression has work to do beyond picking up, on the facts of this case, the time of the death. It follows that the more general words do not provide support for the applicant’s contention that “at a particular time” in this case means something other than the time of the death.
The second question of construction is as to the scope of the phrase “is taken to be living with another person” in s 6A(5). The applicant’s submission was that this phrase covered the whole of the ground of “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” within the meaning of that expression in s 6A(1). I reject that submission for a number of reasons.
First, the language of s 6A(5) is limited to “living with” rather than the entirety of the phrase used in s 6A(1), which I have just set out.
Second, conceptually a “marital relationship” is not established merely by one person “living with” another. No doubt what comprises the marital relationship for each couple will vary but clear language would be necessary before it would exclude “liv[ing] with that other person as that other person’s husband or wife … on a permanent and bona fide domestic basis.”
Third, the balance of that language in s 6A(1) would not have work to do if the character of the cohabitation was to be established merely by reference to the cohabitation itself.
Fourth, such a construction would lead to absurdity or unintended consequences in that those who are not cohabiting as the other person’s husband or wife or partner on a permanent and bona fide domestic basis, such as flatmates or siblings, would be taken to be persons having a “marital or couple relationship” with each other. Conversely, those who were married but who had separated would on that construction continue to have a marital relationship for the purposes of the Act as long as they were cohabiting: compare the meaning of separation in s 49(2) of the Family Law Act 1975 (Cth) which provides that the parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence.
Fifth, s 6A(5) has work to do in relation to absences of one person in a marital relationship from the other. It covers a matter adverted to in the joint judgment of Latham CJ, Rich and Dixon JJ in Main v Main (1949) 78 CLR 636 at 641-643 where their Honours were considering s 69(6) of the Supreme Court Act 1935 (WA). The extract is long but it well illustrates the distinction between living separately, on the one hand, and absences, on the other. Their Honours said:
The critical words are “where the husband and wife have lived separately and apart for a period of not less than five years.” No doubt a consecutive period of five years is intended. The two words “separately and apart” show that physical separation is necessary and that it is not enough that there has been a destruction of the consortium vitae or matrimonial relationship while the spouses dwell under the same roof. In matrimonial law the expressions like “live separately”, “separated” and “separation” are commonly used to indicate that the conjugal relation no longer exists between the parties to the marriage. Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary.
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 65]). The word “separate” should, it seems, be interpreted as importing the negation of such a matrimonial relationship. This conclusion is supported by the final words of sub-s. (6), namely “and it is unlikely that cohabitation will be resumed.” “Cohabitation” is used in many senses but here it seems to mean a re-establishment of the ordinary relationship of husband and wife. It follows that there may be absences from one another, relinquishment of a matrimonial home and physical separations of long duration caused by circumstances and yet, if these conditions are treated as temporary by the parties themselves, it may be true that they are not living separately although they are living apart. But five years is a long time, and only in very exceptional circumstances will husband and wife live apart for so long and yet maintain a matrimonial relationship. If they do manage to maintain the relationship for so great a period, it will almost certainly be true that the resumption of cohabitation is likely and for that reason sub-s. (6) will not apply.
In the present case the permanent state of physical incapacity of the husband, the hopelessness of his condition and the situation in which the parties found themselves make it an almost inevitable inference that for many years all conjugal relationship had been abandoned. Both must have known that the resumption of a common home, of a marital association, was out of the question. There was no prospect of its ever being possible.
This passage also illustrates what the finder of fact may well consider in deciding a question such as the present, once it is determined that s 6A(5) does not cover the entirety of the relationship.
Sixth, s 6A(5) is a deeming provision and the express application of a deeming provision should not be extended by implication: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96; East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 at 478.
My conclusions on these questions of construction should, in light of counsel’s concession recorded at [18] above, dispose of the questions of law. In case there are further matters outstanding I shall consider the Tribunal’s reasons in a little more detail.
A fair reading of the Tribunal’s reasons shows that the Senior Member reasoned as follows.
At [36] the Tribunal identified the issue as whether Ms Salton was in a marital relationship with Mr Dixon at the time of his death, as defined by s 6A and was accordingly a “spouse”. In my view this was the correct question.
The Tribunal found that Ms Salton and Mr Dixon married in 1979 and remained married at the date of Mr Dixon’s death in 2009. Having noted that the couple lived together in a bona fide domestic relationship until October 1991, the Tribunal said there was then a separation between them.
The Tribunal noted, more than once, that Ms Salton’s case was that the couple were separated and the separation maintained for the reason that, at least since the late 1980s, Mr Dixon was suffering from delusional persecutory disorder and substance abuse.
The Tribunal considered the medical evidence. The Tribunal also considered the evaluation reports as to Mr Dixon’s functioning within the RAAF between 1972 and 1980, and for 1988, 1992 to 1994, 1997 and 1998. The Tribunal noted there was no record in the workplace reports of the delusions chronicled by his family.
The Tribunal also had clinical notes in evidence for the years 1984, 1988, 1991, 1998, 2000, 2005 and 2009. The Tribunal found that Mr Dixon’s delusional disorder worsened after 2002 but that in the period from 1993 and 2002 there was little indication from Ms Salton that his delusional disorder or his alcoholism were particular issues.
The Tribunal noted that when it is asserted that a separation has taken place it may be necessary to examine and contrast the state of a marital relationship before and after the alleged separation. Whether there has been a separation, the Tribunal said, will be a question of fact to be determined in each case.
The Tribunal found that Ms Salton appeared content with the arrangements, that is the maintenance of a covert relationship in which Mr Dixon appeared irregularly, and then left and, the Tribunal found, Ms Salton’s evidence did not indicate regular or supportive contact with Mr Dixon, nor an intention to resume the relationship permanently at any time.
The Tribunal noted Ms Salton’s statement that “Hugh and I separated … because of his personality traits …”. The Tribunal said that “personality traits” was ambiguous and could refer to Mr Dixon being a “loner” and being inclined to be volatile and to lose his temper and it could also refer to his delusionary behaviour. The Tribunal said that there was no suggestion in any evidence that Mr Dixon’s preference for solitude was due to the delusionary beliefs. It did however reinforce the implication that even without his mental illness, Mr Dixon did not want to be “ordinarily living with” another person, particularly after an 11 year separation as at 2002.
The Tribunal distinguished between Mr Dixon’s psychiatric conditions and personality traits not due to his psychiatric conditions. The Tribunal found, at [78], in effect that it was not satisfied that, leaving aside his mental conditions and his alcoholism, Mr Dixon and Ms Salton would have been likely to have been living together in a bona fide domestic relationship at the time of his death.
In my view, the Tribunal asked itself the right question and answered it on the facts as it found them to be.
I turn to consider the six grounds in the notice of appeal. In so doing I should not be taken to have accepted that each raises a question of law.
Ground 1: The Tribunal erred in law in its finding that the deceased’s persecutory delusions and his alcoholism did not constitute special circumstances within the meaning of section 6A(5)(b) of the Act.
I have dealt with the substance of this ground at [17] above. The Tribunal treated Mr Dixon’s illness as a special circumstance but pursued the question of whether Mr Dixon would have ordinarily lived with Ms Salton as her husband on a permanent and bona fide domestic basis at the time of his death apart from his illness. This included whether or not the Tribunal was satisfied that Mr Dixon would have been living with Ms Salton except for a period of absence because of Mr Dixon’s illness. I reject Ground 1.
Ground 2: The Tribunal erred in law in taking into account the intention of the Applicant or deceased in resuming living with each other as intent is an irrelevant consideration for the purposes of section 6A(5)(b) of the Act.
The Tribunal said that findings on the question of whether Mr Dixon would have been in a marital relationship with Ms Salton in the sense that they would have been ordinarily living together on a permanent and bona fide domestic basis at the time of his death required analysis of the couple’s behaviour and intentions during their separation, absent Mr Dixon’s conditions. In my view intention is not a legally irrelevant consideration for the purposes of s 6A(1). The Tribunal accurately recognised that s 6A(5)(b) did not cover the whole ground of s 6A(1). Far from being legally irrelevant, whether or not Ms Salton and Mr Dixon had an intention to reconcile was directly relevant. I refer to the passage I have reproduced from Main v Main above. I reject Ground 2.
Ground 3: The Tribunal erred in law in asking itself whether the Applicant and the deceased were separated at the relevant time.
Since the Act poses the question of whether the deceased and the person claiming to be in a marital relationship with the deceased “ordinarily lived with” the deceased as that other person’s husband or wife on a permanent and bona fide domestic basis at the time of the death of the deceased it is impossible to say that the Tribunal should not have explored the circumstances, in the present case, in which Ms Salton and Mr Dixon had first separated and continued to be separated. Indeed much of the material put forward by the applicant before the Tribunal was directed to that question, as it needed to be. I reject Ground 3.
Ground 4: The Tribunal erred in law in failing to take into account that the applicant and the deceased were legally married at the time of the deceased’s death.
The Tribunal was well aware that the applicant Ms Salton and the deceased Mr Dixon were legally married at the time of the deceased’s death. As the case was run, that was not a legally significant matter because the issue the Tribunal addressed was the marital relationship, including the deeming provision whereby, despite the deceased’s absence, he would be taken to be living with Ms Salton. I reject Ground 4.
Ground 5: The Tribunal erred in law in taking into account the general meaning of a marital or couple relationship in circumstances where the Applicant and the deceased were legally married at the time of the deceased death.
In my view the Tribunal did not err in taking into account the general meaning of a marital or couple relationship. I take it that the ground is a reference to [47] of the Tribunal’s reasons. At that point the Tribunal was observing, correctly, that s 6A uses the language of “husband or wife” and therefore the general meaning of that expression was relevant. This ground must stand or fall with the submission as to the scope of s 6A(5) which I have already considered and resolved against the applicant. I reject Ground 5.
Ground 6: The Tribunal erred in law in failing to properly construe and apply sections 6A(1) and 6A(5)(b) of the Act.
This ground fails to identify, with any particularity, any separate error of law. I reject Ground 6.
As to the applicant’s written submissions, the central proposition there stated is that the applicant’s case was that the separation, because it was caused and perpetuated by Mr Dixon’s mental illness, was not fatal to the “marital or couple relationship” within the meaning of the Act. But, as I have held, the Tribunal was entitled to and did find that Mr Dixon’s mental illness was not the cause of the separation or of its perpetuation.
The three “key submissions” made by the applicant in the written submissions were first that the Tribunal did not take any or proper consideration of the definition of “spouse” and failed to recognise “in any significant way” the fact that Mr Dixon and Ms Salton remained legally married. Second, “the learned Senior Member failed to place sufficient weight on the factor of “special circumstances”, preferring instead to determine whether the parties had separated “permanently”. Third it was submitted that the determination that the parties were permanently separated was based on irrelevant facts and failed to consider relevant ones. In my view, for the reasons I have given in considering the individual grounds, none of these “key submissions” is made out. Each has more to do with the merits than with questions of law.
One way of addressing the question posed by s 6A(5) is to ask “would [the deceased] have been living with that other person” at all except for a period of absence because of, relevantly, the person’s illness. If the applicant is submitting in [36] of her written submissions that the only test is whether the cause of the absence was “special circumstances”, then I would disagree. A related submission at [37] is that the legislative question requires [only] an analysis of the cause of the separation. This, it was submitted, requires a finding whether “special circumstances” prevailed at the date of separation. I reject this submission as inconsistent with the statutory language.
As to the oral submissions made on behalf of the applicant, it was put that the interpretation of the provision did not allow for, in effect, the original purpose of the absence, the reason for the absence, to be overcome by the way in which the parties may have conducted themselves. In dealing with the question of the separation the Tribunal asked itself the wrong questions and by doing so did not answer the questions the Tribunal should have answered. The first question, it was submitted, the Tribunal should have answered was whether the absence was because of special circumstances. In my view, on what I have held to be the correct construction of the provisions, the Tribunal did address the question it was required to address.
The balance of the matters complained of, on analysis, go to the merits of the Tribunal’s fact-finding. On a fair reading of the Tribunal’s decision I reject the submission that the Tribunal failed to decide whether Mr Dixon’s absence was on the basis of his illness or not. As a matter of fact-finding, in my view the Tribunal was identifying the other factors which contributed to the continuing separation and absence. On that basis the Tribunal was not satisfied that Mr Dixon would have been living with Ms Salton except for a period of absence because of special circumstances and for the same reasons the Tribunal was not persuaded that Mr Dixon and Ms Salton had a marital relationship at the time of his death on the basis that Mr Dixon ordinarily lived with Ms Salton as her husband on a permanent and bona fide domestic basis at the time of his death.
I accept that if, as a matter of fact, the separation was caused and perpetuated by Mr Dixon’s mental illness that may not be fatal to the “marital relationship” within the meaning of the Act but that question of fact was decided by the Tribunal against the applicant.
As to the notice of contention, counsel for the respondent accepted that the purpose of that notice was twofold: that is, if the matter were returned to the Tribunal or if the appeal was dismissed the Court, by its silence, would not be taken to have approved the use by the Tribunal of the language complained of in the notice of contention.
In my view there are some passages in the Tribunal’s reasons which contain potentially misstated paraphrases or elisions of the statutory provisions but in substance the Tribunal was well aware that the question posed by s 6A(5)(b) went only to the “living with” part of ss 6A(1) and (2). The Tribunal stated as much in [39], [45] and [46] of the reasons, despite some loose expression in the latter. I agree however that the paragraph referred to in the notice of contention should have the words “in a marital relationship” deleted and the words “living with” substituted.
Despite the single paragraph referred to in the notice of contention, counsel for the respondent also identified [45], [46], [47], [67] and [78] of the Tribunal’s reasons as containing the same error. Rather than approve or disapprove particular language, it is in my view sufficient to repeat that the deeming provision in s 6A(5) deals only with the “living with” aspect and deems the absences with which the subsection deals as not interrupting the parties “living with” each other. The subsection deems the person to be living with the other if the decision-maker is satisfied that the person would have been living with that other person except for a period of temporary absence or absence because of special circumstances. I should also add that I see some of the paragraphs complained of by the respondent, in particular [45], [67] and [78], as unexceptionable in the circumstances of the present case.
Conclusion and orders
The appeal is dismissed, with costs.
I certify that the preceding sixty one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 18 January 2013
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