Truan and Commonwealth Superannuation Corporation - [2019] AATA 555

Truan and Commonwealth Superannuation Corporation [2019] AATA 555 (26 March 2019)
Division:GENERAL DIVISION
File Number: 2018/1248
Re:Lillian Truan
APPLICANT

AndCOMMONWEALTH SUPERANNUATION CORPORATION
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:26 March 2019
Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the delegate, finding Mrs Truan is an eligible spouse surviving a deceased person for the purposes of section 6B(2) of the DFRDB Act.
...[sgd].............................................
Ms Anna Burke AO, Member
Catchwords
SUPERANNUATION – beneficiary – commonwealth superannuation scheme – whether Widow entitled to spouse reversionary pension – marital or couple relationship – whether separation was due to special circumstances – whether marital relationship would exist but for deceased mental health issue of post-traumatic stress disorder (PTSD) – decision set aside and remitted
Legislation
Defence Force Retirement and Death Benefit Act 1973
Veterans’ Entitlement Act 1986
Cases
Re Rosemarie Beadle and Director-General of Social Security [1984] AATA 176 (28 May 1984)
Salton and Commonwealth Superannuation Corporation [2012] AATA 305 (21 May 2012)
Salton v Commonwealth Superannuation Corporation [2013] FCA 12 (18 January 2013)
Gray and Defence Force Retirement and Death Benefits Authority [2004] AATA 450 (4 May 2004)
Franks and Defence Force Retirement and Death Benefits Authority [2010] AATA 748 (10 September 2010)
REASONS FOR DECISION
Member Anna Burke
Mrs Lilian Truan is the widow of Mr John Truan. Mrs Truan is seeking a spousal reversionary pension (spouse benefit) under the Defence Force Retirement and Death Benefits Act1973 (Cth) (DFRDB Act) following the death of her husband on 12 October 2015.
On 5 September 2017, a delegate of the Commonwealth Superannuation Corporation determined that Mrs Truan was not entitled to the spouse benefit as they found that a marital or couple relationship did not exist between Mr and Mrs Truan at the time of Mr Truan’s death. That decision was affirmed on review on 21 February 2018. The report states:
DFCAP considered the information above and acknowledge that Mr and Mrs Truan never officially divorced, and that Mrs Truan was forced to leave the couple’s home because of Mr Truan’s illness and domestic violence. However, Mr Truan and Mrs Truan had a formal property split in 2006, and 18 years had passed between their separation and Mr Truan’s death. Furthermore, DFCAP noted that there is no evidence that a marital couple relationship continued between Mr Truan and Mrs Truan after their separation, noting no evidence of joint finances, property or independent evidence of ongoing contact during the separation was provided. Therefore DFCAP was satisfied there was an absence due to illness, however, there was no evidence supporting intention to resume cohabitation once the temporary absence or absence due to special circumstances ceased.
Mrs Truan sought further review by the Administrative Appeals Tribunal on 14 March 2018, of the 21 February decision that denied her benefits arising from the death of her spouse John Frederick Truan.
Mrs Truan was represented by Mr Mark Carey of counsel, instructed by Peter Falconer of Peter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 555
Decision Date: 26 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the eligibility of Mrs Truan to receive a spouse reversionary pension under the Defence Force Retirement and Death Benefits (DFRDB) Act following the death of her husband, Mr Truan. The dispute centred on whether Mrs Truan qualified as a spouse for the purposes of the DFRDB Act, given that she had been separated from her husband for many years prior to his death.

The primary legal issue before the Tribunal was to determine whether Mrs Truan maintained a "marital or couple relationship" with her deceased husband at the time of his death, as defined by section 6A of the DFRDB Act. This required the Tribunal to assess whether their separation was due to "special circumstances" as contemplated by the Act, specifically whether the marital relationship would have continued but for Mr Truan's mental health issues stemming from post-traumatic stress disorder (PTSD).

The Tribunal's reasoning focused on the definition of a marital or couple relationship, which includes circumstances where a person ordinarily lived with another on a permanent and bona fide domestic basis. Crucially, section 6A(5) allows for periods of absence due to special circumstances, such as illness or infirmity, to be disregarded. Mrs Truan provided evidence that she left the family home in 1998 due to Mr Truan's violent and unpredictable behaviour, which she attributed to his PTSD. She stated that she would have returned to live with him had it been safe to do so, and that she continued to regard him as her husband and maintained an ongoing relationship with him until his death, despite their physical separation. The Tribunal accepted that Mr Truan's persistent PTSD constituted special circumstances that prevented reconciliation and that Mrs Truan remained legally married and maintained an ongoing relationship with him.

Consequently, the Tribunal set aside the previous decision and remitted the matter to the delegate. The Tribunal found that Mrs Truan was an eligible spouse surviving a deceased person for the purposes of section 6B(2) of the DFRDB Act, as her separation from her husband was due to the special circumstances of his PTSD, which prevented reconciliation.

Orders

Orders of the court

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Background

Background to the litigation

Mrs Truan was represented by Mr Mark Carey of counsel, instructed by Peter Falconer of Peter Falconer & Associates. The Commonwealth Superannuation Corporation was represented by Ms Roslyn Kaye of counsel, instructed by Ms Ingrid Weinberg of Allens. The Tribunal was provided with documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). Counsel for Mrs Truan tendered further documentation. Mrs Truan and her daughter, Ms Jasmine Truan-Jones, gave evidence in person.BACKGROUND On 19 April 1973 Mr and Mrs Truan were married at St Andrews Catholic Church Werribee, and remained married for 42 years until Mr Truan’s death from pancreatic cancer in 2015. The marriage produced two daughters, Juanita born in April 1974 and Jasmine born in May 1979. Mr Truan enlisted in the regular army in or about 1964, engaging in war service in an infantry role during the Vietnam War between November 1968 and March 1970. Later, he joined the RAAF where he performed electronic/radio communications work, and was discharged from the RAAF in about 1985. Between 1973 and 1985 Mr and Mrs Truan lived in various locations, including Windsor, Penrith and Darwin, associated with Mr Truan’s RAAF postings. On discharge from the RAAF due to spinal issues in 1985 they moved to Cairns for about 8 years, relocating back to Melbourne in 1993. From 1982 Mr Truan displayed symptoms of post-traumatic stress disorder (PTSD) related to his Vietnam War service, and was formally diagnosed with PTSD in 1988. In 1986 Mrs Truan opened and maintained her own bank account paying her and the children’s living expenses. On about 17 June 1998 Mrs Truan moved out of the family home with her daughters. From this time until her husband’s death in 2015, Mrs Truan did not live with her husband on a permeant basis. Mrs Truan first resided in her deceased father’s home and, upon its sale in 2004, purchased her own home in Werribee. In 2006, Mr and Mrs Truan had a property settlement via family court proceedings. Mr Truan bought out Mrs Truan’s half of the family home in Bannockburn and transferred the title of the property solely into his name in 2007. There were no other assets involved in the property settlement. On 1 July 2009 Mrs Truan was advised her partner services pension would continue as the Department of Veteran Affairs (DVA) had found “Special Domestic Circumstances” existed under subclause 38(2AC) of the Veterans’ Entitlement Act. Mrs Truan’s statement for Special Domestic Circumstances indicated she had separated from her husband in 1998, due to his physical and mental abuse of her, brought on by his PTSD. In 2012, Mr Truan moved to Brisbane to live with his mother following the death of her partner. In 2015 Mr Truan’s health began to decline. He relocated to Melbourne, living with his daughter Jasmine and her husband in Wyndham. At this time he was diagnosed with terminal cancer. Subsequently, Mr Truan went into Palliative care and died in hospital.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds Mrs Truan is an eligible spouse surviving a deceased person for the purposes of section 6B(2) of the DFRDB Act, as she was separated from her husband due to special circumstances. The special circumstances being her husband’s illness of PTSD which persisted for 18 years preventing her from reconciling with her husband. Regardless, she continued to be legally married and maintain an ongoing relationship with her husband until his death. DECISION The Tribunal sets aside the decision under review and remits the matter to the delegate, finding that Mrs Truan is an eligible spouse surviving a deceased person for the purposes of section 6B(2) of the DFRDB Act.

Ratio Decidendi

Legal Principle Established

Section 6A of the DFRDB Act defines marital or couple relationship as;(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, wife, spouse 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, wife, spouse 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, wife, spouse 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, wife, spouse or partner for a continuous period of less than 3 years up to that time and CSC, 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, wife, spouse 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 2E 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).THE TRIBUNAL’S CONSIDERATION AND FINDINGSEvidence before the Tribunal Mrs Truan’s statement of June 2018 provided to the Tribunal states:I was not living with John since 1998 because of the special circumstance of his violent and unpredictable behaviour. I had experienced the violent outbursts and physical assault during the years up to 1998. I was physically assaulted in June 1998 and could not remain in the house.I was aware that he behaved that way because he suffered from PTSD. If he had been cured of PTSD I would have move back in. However, he could not recover from that illness. I knew he didn’t keep up is treatment for PTSD and preferred to avoid coming to terms with the need to continue his counselling and medication. He told me these things when we talked over the years after I had left the Bannockburn house in 1998. I knew that John still had problems with nightmares, with his gambling, with the angry outbursts from our contact through the years. I couldn’t go back because of the risk to myself and the girls. However, I never sought a divorce and I regarded him as wife and the girls as father and that we were all a family. I would have continued to live with him had it been safe to do so. John and I were Catholics and we took marriage for life seriously. Neither of us ever sought any other partners after we were married in 1973.I never cared for anyone else and always had John as my husband even if I could not be with him at home after his violence increased in 1998. Nothing about his behaviour changed after we left the home. He still remained an increasingly isolated and uncommunicative man with serious psychological problems that he didn’t deal with by engaging in treatment. Nevertheless, I loved him all his life and would have been with him at home had it been safe to do so.