Case 1:

In this case the tribunal reviews the trustee’s decision that the complainant was not the deceased member’s spouse with the consequence he was not entitled to a reversionary pension of $31,094.44, being 67 per cent of the deceased member’s disability pension. The rules of the superannuation fund were contained in an Act of Parliament which leads us to the conclusion that the Tribunal was dealing with one of the public sector’s superannuation schemes. This is an important fact as this case does not explore SIS Act concepts of interdependency relationships as it was purely focused on the rules of the particular scheme in question.

In August 2013, the trustee decided the complainant was the spouse of the deceased. They had lived together for over ten years and the complainant had looked after the deceased, including leaving work to care for him when he was terminally ill. This was thought to be more the actions of a spouse than that of a housemate and friend, but the trustee’s decision was entirely based on evidence given to it by the complainant.

Subsequently, the legal personal representative (LPR) of the deceased asked the trustee to reconsider its decision and in April 2015 (based on additional evidence provided by the LPR which is discussed below), the trustee set aside its earlier decision and decided the complainant was not the spouse of the deceased. The complainant requested a review, proper processes were followed and the trustee decided to not change its revised decision. The issue before the Tribunal was whether this revised decision was fair and reasonable in the circumstances.

The factual matrix presented to the trustee was that shortly before his death the member went to a solicitor for the purpose of preparing a new will which was never finalised. At this conference, he advised the solicitor his housemate was his friend and not his partner but that he should be given the right to reside in the home for the rest of his life. The solicitor gave evidence of this conversation in the form of a statutory declaration which was provided to the trustee by the LPR. It was also clear the two men kept separate bank accounts and the complainant paid rent to the deceased who owned the house. The complainant and the deceased travelled together and socialised together with some considering they were a couple while others did not. This was attributed to the deceased coming from a very conservative country background.

So were the two men in a spousal relationship or not?

The evidence needed to be considered holistically and a value judgement made. There was some evidence suggesting a spousal relationship existed, just as there was evidence of a close friendship and not a spousal relationship. The Tribunal considered all of the evidence and concluded that the trustee’s revised decision was fair and reasonable. Effectively, more weight was given to the evidence of the solicitor who had spoken to the deceased in the period immediately prior to his death.


Case 2:

She (the claimed spouse) was only 20 years old when the member (aged 25) died in a worksite accident. They were living together in a caravan that she owned and which was parked at her parents’ home, but that arrangement had only existed for 26 days before the tragic accident. Was she his spouse or girlfriend?

Prior to moving into the caravan the couple had resided at the deceased member’s grandparents’ and paternal aunt’s home for the period of nine months. There were conflicting assertions about whether this was the start of their ‘spousal’ relationship or the continuation of a ‘girlfriend and boyfriend’ relationship. The aunt did everyone’s washing until she complained and then the claimed spouse took her washing home to her parents’ house. There was strong evidence the couple were planning a life together, including buying a home when they could afford to do so, and starting a family.

Some three weeks after the accident the claimed spouse was visiting the deceased’s father when he asked her, which she did, to sign a ‘Form D’ in which she described herself as the ‘partner’ of the deceased, and indicated an intention not to be paid a benefit. A few days later, the legal advisor of the claimed spouse wrote to the father and indicated she was in no fit state to sign such a document as she was still grieving the tragic loss of ‘her beloved partner’. This letter also asked that the father commit to not sending the form to the trustee. The claimed spouse also wrote to the trustee to withdraw her signature for the form. Both the claimed spouse and the deceased’s brother later applied to the trustee to be paid the death benefit. The brother included the ‘Form D’ in his application.

The complainant was the father of the deceased and he asserted the claimed spouse was simply the girlfriend and that the trustee should follow the non-binding death benefit nomination and pay the benefit to the deceased’s brother.

The trustee submitted that the claimed spouse was the deceased’s de facto, noting that under the Superannuation Industry (Supervision) Act 1993 (SIS Act) there is no timeframe requirement before someone is considered a ‘spouse’. The trustee went on to say if it was wrong in its decision regarding the de facto status, the claimed spouse was, at least, in an interdependency relationship in the context of the SIS Act. This was because at the date of death:

  1. she was living with the member;
  2. evidence showed a close personal relationship;
  3. there was evidence that one or the other provided personal and domestic support; and
  4. there was evidence of one or the other providing financial support.

The trustee also pointed out that the brother was not a ‘dependant’ in the context of the trust deed and the SIS Act because there was no evidence of financial dependency or that of an interdependency relationship. It did not have any evidence of the liabilities of the estate, so in the circumstances, it was fair and reasonable to pay the entire death benefit to the claimed spouse. She was the only person to whom it could pay the benefit under the trust deed once it discounted paying the estate.

The trustee completely disregarded the signing of the ‘Form D’, accepting the claimed spouse had not received legal advice before signing the form. Her explanation was completely reasonable.

Finally, the Tribunal noted in its findings that the father in his tribute to his son at the funeral had stated:

[The Deceased Member] had so many people in his life that loved and supported him. My parents, his aunt [name] and uncle [name] and just recently, [the Claimed Spouse] and her family.

I’ve met [the Claimed Spouse’s] family, and the fact that her Dad has a bigger shed than mine, confirms for me that [the Deceased Member] had finally found the right girl.

The Tribunal held that the eulogy suggested the claimed spouse was more than just a girlfriend. In the circumstances, the Tribunal concluded the trustee’s decision to pay the entire death benefit to the claimed spouse was fair and reasonable. In making this decision, the Tribunal pointed out the guidance offered by the Federal Court in Stock re Mandie v NM Superannuation at [2015] FCA 612 to the effect that it is not unreasonable for the trustee to follow its general practice of not paying the LPR if the deceased member is survived by dependent(s).