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…
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- Case
- [2013] FCA 12
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved interpreting the deeming provision in section 6A(5) of the Act, which deals with the concept of "living with" another person despite periods of absence. Specifically, the court had to determine whether the absences were due to special circumstances that would trigger the deeming provision. The court also needed to address whether the Tribunal had correctly interpreted and applied the statutory language and whether it had erred in its reasoning.
The court concluded that the Tribunal's interpretation of the deeming provision was accurate. The deeming provision only addresses the "living with" aspect and considers absences that do not interrupt this status. The court found that the Tribunal had not erred in its interpretation of the statutory language and that some of the paragraphs identified by the respondent did not contain any objectionable language. The court dismissed the appeal and ordered that the appeal be dismissed with costs.
Orders
Orders of the court
1. The appeal be dismissed, with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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