Hornsby v Military Superannuation & Benefits Board of Trustees No 1 [2003] FCA 54 (11 February 2003)

Last Updated: 25 February 2003

FEDERAL COURT OF AUSTRALIA

Hornsby v Military Superannuation & Benefits Board of Trustees No 1

[2003] FCA 54

SUPERANNUATION - consideration of role of Superannuation Complaints Tribunal under s 37 of Superannuation (Resolution of Complaints) Act 1993 (Cth) - consideration of extent to which Tribunal must make its own findings of fact having regard to s 37(6).

SUPERANNUATION - claim to spousal benefits under Scheme established under Military Superannuation and Benefits Superannuation Scheme - whether deceased member and claimant continued spousal relationship up to time of death of deceased member - facts necessary to be established to show that spousal relationship had ceased - whether cessation of living together a necessary fact to show relationship had ceased - proper construction of Rules of Scheme - evidence of substantial financial dependency - specified relevant evidence - whether Tribunal obliged to consider such evidence - whether Tribunal failed to consider such evidence.

DE FACTO RELATIONSHIPS - consideration of circumstances necessary to show de facto relationship has ceased where cohabitation continues - consideration of relevance of ongoing financial dependency.

Superannuation (Resolution of Complaints) Act 1993 (Cth), s 37

Military Superannuation and Benefits Act 1991 (Cth)

Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 - cited

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 - cited

Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409, at 419 - cited

Repatriation Commission v Thompson [2001] FCA 341 at [60]; [2001] FCA 341; (2001) 107 FCR 235 - cited

Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 - considered

Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 - followed

Military Superannuation and Benefits Board No.1 v Stanger [2002] FCA 671 - applied

Briffa v Hay (1997) 75 FCR 428 - cited

Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683; (1999) 94 FCR 594 - cited

National Mutual Life Association of Australasia Ltd v Campbell [1999] FCA 1717 - cited

National Mutual Life Association of Australasia Ltd v Campbell [2000] FCA 852; (2000) 99 FCR 562 - cited

Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 36 - cited

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 - referred to

Howland v Ellis [2001] NSWCA 465 - considered

Sullman v Sullman [2002] NSWCA 169 - considered

George v Hibberson [1987] DFC 95-054 - considered

In the Marriage of Falk (1977) 15 ALR 189 - considered

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 - cited

Roy v Sturgeon (1986) 11 NSWLR 454 - cited

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 - considered

Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 54 FLR 334 - applied

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 - cited

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 - cited

Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 - cited

Comcare v Calipari [2001] FCA 1534 - cited

Minister for Immigration & Ethnic Affairs v Gungor (1982) 63 FLR 441 - cited

NGAERE BELINDA HORNSBY v MILITARY SUPERANNUATION & BENEFITS BOARD OF TRUSTEES NO 1

D 8 of 2002

MANSFIELD J

11 FEBRUARY 2003

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 8 OF 2002

BETWEEN:	NGAERE BELINDA HORNSBY APPLICANT
AND:	MILITARY SUPERANNUATION & BENEFITS BOARD OF TRUSTEES NO 1 RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	11 FEBRUARY 2003
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1. The decision of the Superannuation Complaints Tribunal made on 27 November 2001 is set aside.

2. The matter is remitted to the Superannuation Complaints Tribunal to review the decision of the Military Superannuation and Benefits Board of Trustees (No.1) given on 3 December 1999 according to law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 8 OF 2002

BETWEEN:	NGAERE BELINDA HORNSBY APPLICANT
AND:	MILITARY SUPERANNUATION & BENEFITS BOARD OF TRUSTEES NO 1 RESPONDENT

JUDGE:	MANSFIELD J
DATE:	11 FEBRUARY 2003
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an application by way of appeal on a question of law under s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the SRC Act) from a decision of the Superannuation Complaints Tribunal (the Tribunal) made on 27 November 2001. The Tribunal affirmed a decision of the Military Superannuation and Benefits Board of Trustees No 1 (the Board) given on 3 December 1999. The Board decided that the applicant was not entitled to any payment of spouse benefits under the Military Superannuation and Benefits Scheme (the Scheme) established under s 4 of the Military Superannuation and Benefits Act 1991 (Cth) (the MSB Act) in respect of the death of Brian Lawrence Greentree (the deceased). The deceased died on 5 August 1997.

2 The Scheme is in terms of the Trust Deed set out in the Schedule to the MSB Act as amended from time to time in accordance with s 5 of the MSB Act, and includes the Military Superannuation and Benefits Rules (the Rules) which are in turn a Schedule to the Trust Deed. There is no dispute about the terms of the Trust Deed or of the Rules applicable for the purposes of the present application.

3 The starting point is Rule 38 in Part 5 Div 1 of the Rules which provides:

"Where a member dies and is survived by a spouse or spouses or an eligible child or children, benefits are payable in accordance with this Division."

Part 5 Div 1 deals, inter alia with spouse benefits upon the death of a member.

4 Under Rules 39 and 40, a deceased member's member benefit under Part 5 Div 1 is payable to the spouse if the deceased member is survived by a spouse. Part 5 of the Schedule to the Rules contains provisions about when a person is a spouse who survives a deceased person. Paragraph 9 of the Schedule to the Rules relevantly provides that a person is a spouse who survives a deceased person if:

"the person had a marital relationship with the deceased person at the time of the death of the deceased person."

The expression "marital relationship" is in turn defined in Part 1A of the Schedule to the Rules. The relevant paragraphs were numbered 1A to 1C. They provided:

"1A For the purposes of these Rules, a person had a marital 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 on a permanent and bona fide domestic basis at that time.

1B For the purpose of this Part:

(a) a person is regarded as ordinarily living with another person as that other person's husband or wife on a permanent and bona fide domestic basis at a particular time only if:

(i) a person had been living with that other person as that person's husband or wife for a continuous period of at least 3 years up to that time; or

(ii) had been living with that person as that person's husband or wife for a continuous period of less than 3 years up to that time and the Board, 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 on a permanent and bona fide domestic basis at that time:

whether or not the person was legally married to that other person; and

(b) a person is taken to be living with another person if the Board is satisfied that the person would have been living with that person except for a period of:

(i) temporary absence; or

(ii) absence because of special circumstances (for example, absence because of a person's illness or infirmity or a posting of the person); and

(c) a marital relationship begins at the beginning of the continuous period mentioned in subparagraph (a) (i) or (ii).

1C For the purposes of paragraph 1B, relevant evidence includes, but is not limited to, evidence establishing any of the following:

(a) the person was wholly or substantially dependent on that person at the time;

(b) the persons were legally married to each other at the time;

(c) the persons had a child who was:

(i) born of the relationship between the persons; and

(ii) adopted by the persons during the period of the relationship;

(d) the persons jointly owned a home which was their usual residence."

5 The applicant made a claim for payment of spouse benefits under Part 5 Div 1 of the Rules on 3 September 1997 following the death of the deceased.

6 The Board's decision was made on review of a decision of a delegate of the Board given on 31 December 1997. In accordance with procedures under the Rules of the Scheme, the Board's decision was made in the light of a careful reconsideration of the delegate's decision by the Reconsideration Advisory Committee which reported to the Board on 26 July 1999 and on 22 November 1999.

THE FINDINGS

7 The facts giving rise to the applicant's claim to the entitlement to benefits are quite short. The deceased was born on 13 November 1971 and enlisted on 5 July 1989. He became a member of the Scheme at that time. The applicant was also a member of the armed forces. From some time in 1996 the deceased and the applicant commenced living together as man and wife, and maintained the relationship at least to 31 July 1997, only a few days before the deceased's death by suicide. The issue which the delegate, the Board and then the Tribunal were each required to address was whether the relationship had continued to 5 August 1997, the date of the deceased's death.

8 It was common ground that the applicant and the deceased had not been living together as husband and wife for a continuous period of at least three years up to the time of the deceased's death. Consequently, the applicant needed to fall within par 1B(a)(ii) if she were to meet the definition of being a person who had a marital relationship with the deceased at the time of his death, and so came within the definition of "spouse" under the Rules of the Scheme.

9 The delegate of the Board concluded that the applicant did not meet the definition in par 9 of the Schedule to the Rules and in the definitional provisions in pars 1A and 1B(a)(ii) firstly because, although they were living together in the same house up to and including the date of death, they had separated at the applicant's request prior to the death and secondly because the applicant was not financially dependent upon the deceased.

10 The Board affirmed the decision for slightly different reasons. It accepted that the applicant had been substantially dependent upon the deceased at the time of his death to maintain their standard of living. It concluded that the applicant and the deceased had lived together on a bona fide and domestic basis from 1996 until 31 July 1997, but that from 1 August 1997 to his death on 5 August 1997, the deceased regarded himself as no longer having an ongoing relationship with the applicant. It concluded:

"Hence, notwithstanding the very short space of time between his return to Darwin and his death (a matter of some 5 days) and Ms Hornsby's claim concerning the prospect of resumption of their previous relationship, the Board concluded, on balance, that at the time Corporal Greentree took his life, a marital relationship had no longer existed with Ms Hornsby."

11 The Tribunal, having received a complaint about the Board's decision under s 14(2) of the SRC Act, considered the Rules of the Scheme, the submissions including the evidence available to the Board, and it then concluded:

"The Tribunal considers that there is compelling evidence that the Deceased's suicide was as a result of the breakdown in his relationship with the Complainant. The contents of the suicide note indicated that the Deceased believed that the relationship was over. This was further confirmed by the verbal communications he had with family and colleagues in the days prior to his death.

The Complainant submitted that she was substantially financially dependent on the Deceased, that they had common property and that they were still sharing accommodation at the time of death. There is no dispute between the Trustee and the Complainant as to the Complainant's financial dependency. However this factor is not relevant to the definition of spouse in the Trust Deed and Rules nor to the payment of the death benefit.

Rather it is the nature of the relationship between the Complainant and the Deceased at the time of his death that must be determined. From the evidence before it, the Tribunal agrees that the Deceased may not have moved from the home and may have cancelled plans to do so because he had decided to take his life. This tends to indicate that the relationship was not ongoing.

The Tribunal notes that the Trustee was not satisfied that a permanent de facto relationship existed at the time of the Deceased's suicide. The Tribunal considers that this conclusion was fairly and reasonably open to the Trustee. Accordingly the Complainant does not satisfy the definition of spouse in the Trust Deed and Rules and the Trustee's decision to not pay her a spouse's benefit was fair and reasonable in its operation in relation to the Complainant and the joined party in the circumstances.

The Tribunal notes that the Deceased had named the Complainant as his sole beneficiary in his Will. However, it is further noted, that this was a requirement in order for the Deceased and the Complainant to qualify for married quarters. As there are no other potential beneficiaries for payment of this benefit, if not paid to the Complainant, it must be paid to the estate."

THE GROUNDS OF APPEAL

12 The amended notice of appeal specifies a number of grounds upon which the Tribunal is said to have committed legal error in making its decision. In the light of the oral submissions, the matters alleged to involve legal error on the part of the Tribunal can be more confined. They are:

(1) whether the Tribunal erred in law by not applying the correct test to determine whether the relationship between the applicant and the deceased had ceased prior to his death because it was required to, but did not, consider and determine two distinct questions, namely whether -

(a) the applicant and the deceased had in fact separated, and

(b) the applicant and the deceased intended permanently to separate,

each of which was necessary to be established before a conclusion could be reached that the spousal relationship which existed at least to 31 July 1997 had come to an end;

(2) whether the Tribunal erred in law in having regard to information about whether the relationship between the applicant and the deceased had come to an end from 1 August 1996, which was not direct or primary evidence; and

(3) whether the Tribunal erred in law in regarding the applicant's financial dependence upon the deceased as not relevant to whether she was the spouse of the deceased at the time of his death.

13 In addition, after the hearing counsel for the applicant sought leave to amend the amended notice of appeal (that is as amended at the hearing on 22 October 2002) by identifying the following further question of law in par 2:

"whether the Tribunal erred in law in not making its own determination of relevant matters of fact before deciding that the decision of the Board was fair and reasonable in the circumstances."

And by adding to the grounds of appeal in par 4 the following:

"The Tribunal erred in not itself deciding whether a bona fide domestic spousal relationship existed between the applicant and the deceased at the time of the deceased's death, but instead found that the Board could have made the finding which it made on that matter and then considered whether the decision of the Board was fair and reasonable in the light of the availability to the Board of the finding which it made."

I am satisfied that it is in the interests of justice that I should grant leave to amend the amended notice of appeal in those terms. I give leave accordingly. It was argued that the Tribunal had erred in law by failing to properly exercise its powers under s 37 of the Act. It was contended that the Tribunal was obliged to, and had failed to, make findings of fact in relation to the elements of par 1B(a)(ii) of the Rules, but had simply addressed whether the finding of fact made by the Board that "it was not satisfied that a permanent de facto relationship existed" at the time of the deceased's death was "fairly and reasonably open" to the Board.

14 I note that the amended notice of appeal otherwise refers generally to the Tribunal as the respondent. That description flowed from the Tribunal, rather than the Board being the named respondent. At the hearing, the Board was substituted as the respondent, but I have generally read reference to the respondent as referring to the Tribunal.

CONSIDERATION

15 It is convenient to first address the role of the Tribunal, raised by the further amended ground of appeal. The Tribunal's task under s 37 of the SRC Act is somewhat complex. It relevantly provides:

"(1) For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14:

(a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and

(b) subject to subsection (6), must make a determination in accordance with subsection (3).

...

(3) On reviewing the decision of a trustee, insurer or other decision-maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:

(a) affirming the decision; or

(b) remitting the matter to which the decision relates to the trustee, insurer or other decision-maker for reconsideration in accordance with the directions of the Tribunal; or

(c) varying the decision; or

(d) setting aside the decision and substituting a decision for the decision so set aside.

(4) The Tribunal may only exercise its determination-making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists.

(5) The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract.

(6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:

(c) the complainant; and

(d) so far as concerns a complaint regarding the payment of a death benefit - any person (other than the complainant, a trustee, insurer or decision-maker) who:

(i) has become a party to the complaint; and

(ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;

was fair and reasonable in the circumstances."

16 The Tribunal's powers under s 37 as expressed in s 37(1)(a) and (2) bear a clear resemblance to the powers of the Administrative Appeals Tribunal under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and to the powers of the Migration Review Tribunal and of the Refugee Review Tribunal under ss 349 and 415 respectively of the Migration Act 1958 (Cth). Under such provisions, the reviewing decision-maker stands in the shoes of the original decision-maker and exercises afresh the administrative decision-making power: see e.g. Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440; Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425; Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419; Repatriation Commission v Thompson [2001] FCA 341 at [60]; [2001] FCA 341; (2001) 107 FCR 235 at 250. To perform the review function under such provisions, the reviewing decision-maker must make its own findings of fact on matters which the issue under review requires. And, where there is a discretionary element in the making of the decision, it must exercise its own discretion.

17 The Tribunal's powers are, however, circumscribed or confined by ss 37(4) and (6). Its role is not to decide for itself the correct or preferable decision, as it must affirm a decision if it is satisfied that the operation of the decision the subject of its review was fair and reasonable in the circumstances. Its task is to make a determination under s 37(3) which, by reason of s 37(6), is whether the decision under review in its operation is unfair and unreasonable in the circumstances. If it is satisfied about that, the determination it may make under s 37(3)(b)-(d) is limited by s 37(4) to repairing the unfairness or unreasonableness which it has determined to exist. See the discussion by Allsop J in Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 at [21]- [32]. Allsop J concluded at [32]:

"Thus, essential to the task before the Tribunal, as a consideration mandated by the terms of s 37, is an inquiry as to whether the decision by the trustee or insurer was in conformity with the governing rules or the terms of the policy. If the Tribunal finds that the decision is contrary to the governing rules or the terms of the policy it may well be an easy step to conclude that it is unfair or unreasonable. ... If the Tribunal finds that the decision of the trustee or the insurer is in conformity, with and required, by the governing rules or policy terms, in the sense which I have discussed above, it cannot other than find or be satisfied that the decision is fair and reasonable. If the Tribunal finds that the decision of the trustee or the insurer is in conformity with, but not required by, the governing rules on policy terms, in the sense which I have discussed above, it may proceed, in effect, to supplant the decision of the trustee or insurer with its view of the merits, bearing in mind the limitations of subs 37(4) and 37(5)."

18 Relevantly for present purposes, his Honour's discussion of whether a decision of a trustee is in conformity with, but not required by, the governing rules of the fund under consideration included the following at [29]:

"... because the decision was one which so involves elements of fact, degree, opinion or value judgment that different minds can legitimately differ in reaching a decision or because one aspect of the rules or policy terms, but not another, has been the foundation of the decision. A decision of a trustee or an insurer about a matter of judgment, for instance one involving weighing competing expert or lay opinion about a state of affairs, might be lawful and in conformity with the governing rules and policy terms. It might be described as `correct' in that it was the product of an inquiry directed to the right question and in that there was material available to support it. In this, perhaps limited, sense the decision was correct and was open to be made."

On the other hand, as Kirby J pointed out in Attorney-General (Commonwealth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 at 128-129 [1999] HCA 28 [87]-[89], s 37(5) requires the Tribunal to form a view about the requirements of the applicable law, including the meaning of the rules of the fund, and to make findings of fact. There may be circumstances where the opinion or judgment on a matter of fact required by the proper application of the rules of the relevant fund to be made by the Tribunal may lead it to the view that the operation of the decision under review is unfair or unreasonable. And that may be so even if the primary decision-maker (the trustee) did not mistake its powers and obligations under the governing rules of the fund or did not misunderstand the law or did not misapply the law to the facts.

19 Consequently, the Tribunal may have to make its own findings of fact for the purpose of determining whether, in its opinion, the decision under review in its operation was fair and reasonable in the circumstances. But it is necessary to make such findings of fact only for that purpose. It does not decide afresh all findings of fact of the primary decision-maker as if that decision had not been made. It does not, in that sense, simply stand in the shoes of the primary decision-maker.

20 Hence, under s 37, although the Tribunal is required to make its own decision in relation to the complaint, it is required to make only such findings of fact as are necessary for its decision. It must do so upon the evidence before it. In the light of such findings or conclusions as it has reached, the Tribunal must consider whether the decision it is reviewing, in its operation, was fair and reasonable in the circumstances: Military Superannuation and Benefits Board No.1 v Stanger [2002] FCA 671 at [21]. Section 37(6) requires that step. Ultimately the object of the Tribunal's review is to remove unfairness or unreasonableness in the decision under review. See generally Briffa v Hay (1997) 75 FCR 428; Seafarers' Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683; (1999) 94 FCR 594; National Mutual Life Association of Australasia Ltd v Campbell [1999] FCA 1717, affirmed on appeal National Mutual Life Association of Australasia Ltd v Campbell [2000] FCA 852; (2000) 99 FCR 562; and Lykogiannis v Retail Employees Superannuation Pty Ltd [2000] FCA 327; (2000) 97 FCR 361 at [48].

21 In this matter, the Tribunal's reasons set out in [11] above indicate that it addressed the evidence to determine whether the marital relationship between the applicant and the deceased continued until his death. It referred to the contents of the suicide note, and to the deceased's communications with his family and relatives in the period between 1 and 5 August 1997. It noted the deceased had explored whether to, and then decided not to, move from the home he shared with the applicant. It appears to have accepted the cancellation of the plan to move from the shared home was because he had decided to take his life, but as an indication the relationship was not ongoing.

22 It is not the Court's function to review the Tribunal's findings of fact. The appeal is limited to questions of law. The observations of Mason CJ (with whom Brennan J agreed) in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-356 indicate the line between an error of law and an error of fact where the decision under review involves an inference or conclusion from primary facts. In this matter, it was not argued that the conclusion of the Board, and to the extent the Tribunal agreed with it or held it to be available (an issue addressed below), that the marital relationship had ceased by 5 August 1997 was not reasonably open to it. Hence, no error of law is demonstrated of itself in the reaching of that conclusion. It is beside the point that another mind might have attributed to the deceased's fluctuating attitude to whether he wished to leave the marital home the view that he had not firmly decided to leave it; or that another mind might not have concluded that his decision to remain for the time being in the matrimonial home was because he did not regard the relationship as at an end rather than that he had decided to commit suicide. It is beside the point that the earlier of the two notes written on the night of 4/5 August 1997 may not have indicated to another mind that the deceased did not then intend to terminate the relationship but wished to preserve it, or that his suicide later that night was not the act of a then rational mind. It would of course be an unacceptable proposition that every person who commits suicide thereby rationally intends to sever an existing marital relationship or to indicate the severance of such a relationship so that, by virtue of the suicide, there was not at the time of death an ongoing marital relationship or there was firm evidence that the relationship had come to an end shortly before. But the Board did not express itself that way. In this matter the Board had the benefit of a detailed and reasoned recommendation of the Reconsideration Advisory Committee considering the available material and that document was available also to the Tribunal.

23 In my view, the Tribunal has properly fulfilled its fact finding function under the Act. It has, if not expressly then by clear implication, regarded the evidence as indicating that in this particular case the deceased regarded his marital relationship with the applicant to have broken down by 5 August 1997. It referred to the suicide note, and the deceased's communications with family and colleagues, and it also regarded his decision to remain in the marital home also as consistent with that view. Its findings of fact enabled it then to take the step of concluding that the decision of the Board on that matter was fairly and reasonably open to it. Once that step was taken, the conclusion on the issue identified by s 37(6) followed that the operation of the decision in relation to the applicant was fair and reasonable. Section 37(6) then directed the Tribunal to affirm the decision.

24 I turn to consider the other grounds of appeal referred to in [12] above.

25 The first of those contentions was that, as a matter of law, a de facto marital relationship can end only when there is shown to be both a physical separation and an intention on the part of one or other of the persons involved to bring the relationship to an end. In this matter, there had been no physical separation. Counsel for the applicant relied upon three decisions to support the contention: Howland v Ellis [2001] NSWCA 465 (Howland); Sullman v Sullman [2002] NSWCA 169 (Sullman); and George v Hibberson [1987] DFC 95-054 (George).

26 In George, a claim was made under the De Facto Relationships Act 1984 (NSW), which came into force on 1 July 1985. The claim could only succeed if a de facto marital relationship which had commenced in 1976 had survived beyond 1 July 1985. It was found the relationship had ceased before that date, so the claim under the legislation could not succeed. Cohen J noted that separation in a marriage under the Family Law Act 1975 (Cth) required more than mere physical absence from one another, so that living apart would not amount to separation unless there was also an intention to separate, or unless a party acts as if the marital relationship has ceased. After expressing appropriate caution about directly importing into the De Facto Relationships Act concepts or considerations under the Family Law Act concerning marital relationships, Cohen J said at 75, 608:

"The use of the words `living or having lived together as husband and wife on a bona fide domestic basis" suggest a degree of permanence which will not cease merely because one party separates for the purpose of going on holidays or going on business. Nor would it cease if, after an argument, one party moved out and stayed elsewhere for a short while or went home to his or her family, if there was an intention to return and if there was a reasonable indication of that intention."

Hence, as his Honour concluded, it must be a question of fact, where there has been physical separation, whether one or other party to a de facto marital relationship intended that there should be an end to the relationship by that separation. Such an intention might be inferred from the way a party to the relationship acted.

27 Howland also involved a claim under the Family Relationships Act. It also turned upon whether a de facto marital relationship had come to an end. The claim under that Act by a prisoner in custody could only be maintained as being within the prescribed time if the de facto marital relationship did not come to an end by the imprisonment of the claimant. The partner of the claimant continued to visit the claimant in prison and to express sentiments of love and affection. The imprisonment was for a lengthy period. Stein JA (with whom Meagher JA and Ipp AJA agreed) referred with approval to the decision in George, in saying that there must be both physical separation and an intention on the part of one or other partner to permanently end the relationship before a de facto marital relationship can be said to have come to an end: at [20]-[29]. Sullman appears to have followed those earlier decisions: see at [199]-[203].

28 I do not think that those decisions lay down as necessary factual criteria for the cessation of a de facto marital relationship under the Rules both physical separation and an intention to terminate the relationship on the part of one or other of the partners. In each of those cases there was in fact physical separation, and the issue was whether the separation was in the circumstances determinative of the status of the relationship. As Cohen J pointed out in George at 75, 608, it is necessary to have regard to the particular statutory provisions under consideration to determine what factual issues must be addressed.

29 In this matter the primary eligibility prescription is in par 1A of the Rules, namely that the two persons "ordinarily" lived together at the time of the deceased's death as husband and wife on a "permanent and bona fide domestic basis". Paragraph 1B then indicates the necessary factual criteria to fall within the eligibility prescription. Paragraph 1B(b) explains the circumstances in which two persons are to be taken to be living together notwithstanding a period of temporary or enforced separation (for example the deceased's attendance at a training course in June and July 1997).

30 Here, it is accepted that the deceased and the appellant were ordinarily living together as husband and wife on a permanent and bona fide domestic basis for a continuous period of less than three years up to 31 July 1997. The Board and the Tribunal each appear to have accepted that they continued to live together to the time of the deceased's death, on 5 August 1997. The issue for the Board, and to the extent necessary for the proper application of s 37 for the Tribunal, was whether they continued to do so as husband and wife on a permanent and bona fide domestic basis.

31 I do not see any difficulty with the proposition, which the Board and the Tribunal accepted, that two persons may in the past have lived together as husband and wife on a bona fide domestic basis and may have terminated the spousal relationship but nevertheless have continued to live together, that is in the same premises. There may be many reasons why they might do so. In the context of the Family Law Act 1975 (Cth), there are cases where parties to a marriage have continued to live under the same roof after the marital relationship has ceased: See for example In the Marriage of Falk (1977) 15 ALR 189 at 194-195 per Evatt CJ, Fogarty and Bulley JJ, where it was said:

"Clearly there is no difficulty about accepting a view that parties have "separated" notwithstanding that there has been no physical departure by either of them from the premises that they have previously jointly occupied once it is accepted that separation really means a departure from a state of things rather than from a particular place."

32 I do not consider the cases to which counsel for the applicant referred support the proposition that, in such a circumstance, the spousal relationship must be taken to have continued notwithstanding the parties have in fact mutually agreed to terminate it or if one of the parties has in fact terminated it.

33 Hence, in my judgment, the Tribunal did not err in law in addressing the factual issues posed by par 1B(a)(ii) of the Rules in the way it did even though the deceased and the applicant in fact continued to live under the same roof until 5 August 1997. In my view, it was open to the Tribunal to be satisfied that the decision of the Board, in its operation in relation to the applicant, was fair and reasonable in the circumstances. Section 37(5) did not require the conclusion that, because the deceased and the applicant were still living together in the same married quarters on 5 August 1997, they were still living together as husband and wife on a permanent and bona fide domestic basis. Paragraphs 1A and 1B indicate that the element of ordinarily living together, and the element of the character of the relationship are different elements. Consequently, although ordinarily living together is also one common indicator of a bona fide domestic marital relationship, the fact of ordinarily living together does not as a matter of law or under the construction of the Rules necessarily mean such a relationship exists or continues to exist.

34 The use of information by the Tribunal which was not direct or primary evidence, by which counsel for the applicant indicated he meant evidence admissible in a court, was but faintly argued as an error of law. The Evidence Act 1995 (Cth) does not apply to the Board or to the Tribunal: s 4(1). Section 36 of the SRC Act expressly provides that the Tribunal is not bound by legal forms or by the rules of evidence and may inform itself of any matter relevant to its review in any way it thinks appropriate. The information to which it referred was plainly relevant to the task of the Board. In my view, this contention on behalf of the applicant is not made out.

35 On a literal reading of the Tribunal's reasons, the Tribunal appears to have excluded from its consideration the acknowledged partial financial dependency of the applicant upon the deceased up to 5 August 1997 in the face of par 1C of the Rules. The Tribunal said expressly that her financial dependency is not relevant to the definition of spouse or to the payment of the death benefit. Par 1B(a)(ii) directs the Board (and on review the Tribunal) to have regard to "any relevant evidence" in addressing whether it is satisfied the prescribed relationship existed to the date of death. Par 1C(a) clearly makes dependency a piece of relevant evidence.

36 Counsel for the respondent contended that the Tribunal had not fallen into legal error by ignoring a relevant consideration (see e.g. Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163) for two reasons.

37 Firstly, she contended that par 1B(a)(ii) involves a dual test, and that financial dependency is relevant evidence only to the second limb of the dual test. It was argued that the Tribunal's decision was based upon the first limb only of the dual test, so it did not fall into error in excluding from consideration financial dependency. The second reason was that, properly understood, the Tribunal had not ignored financial dependency as a relevant consideration.

38 I accept that par 1B(a)(ii) can be dissected into two conjunctive elements which must each be established before the applicant comes within par 1A. They are that:

(1) the applicant had been living with the deceased as his wife for a continuous period of less than three years up to the time of the deceased's death; and

(2) the Board (or the Tribunal), having regard to any "relevant evidence", considered that the applicant ordinarily lived with the deceased as his wife on a permanent and bona fide domestic basis at the time of the deceased's death.

The expression "relevant evidence" is specified by par 1C to include, but not be limited to evidence establishing full or substantial financial dependency "for the purposes of paragraph 1B".

39 The significance of the dual elements is hard to discern. Both relate relevantly to the time of death of the deceased. Counsel for the respondent, in her detailed and helpful submissions, identified as one of the different features of the two elements that the first element required some continuity "up to the time of death" whereas the second element focuses upon the time of death. If there is any difference by reason of those different expressions, it is not one of moment to the present application. There may be circumstances in which a marital relationship existed only at or from a particular time, but not beforehand, so the element of continuity up to that time was absent. Where the particular time is identified by the death of one of the putative spouses, it is hard to conceive of any illustration where the relationship could exist at the particular time without some prior continuity in the relationship, albeit a short one. In any event, in this matter, there was no suggestion that the inquiry was other than whether the relationship had ended only shortly prior to the deceased's suicide.

40 Counsel for the respondent also noted that it is only the second element which expressly requires that the spousal relationship be on a "permanent and bona fide domestic basis" at the time in question. Again, it is unclear what that adds in the present matter. There was no suggestion that the applicant and the deceased did not in the period of time to 31 July 1997 have a permanent relationship, or that it was not on a bona fide domestic basis. Living together continuously for a period as husband and wife normally contemplates a bona fide domestic arrangement. It could not, in this day and age, be suggested that the domestic basis be other than one sharing living pleasures and tasks as agreed between the parties to the relationship. In this matter, it was accepted that the relationship to 31 July 1997 was on a bona fide domestic basis. The issue was whether it had come to an end prior to the deceased's death. Moreover, the topics identified in par 1C as relevant evidence include topics which are commonly considered to be relevant to whether two persons are living together as husband and wife: see e.g. the factors enumerated by Powell J in Roy v Sturgeon (1986) 11 NSWLR 454 at 458-459 as follows:

"... it seems to me that each case will involve the Court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following:

1. the duration of the relationship;

2. the nature and extent of the common residence;

3. whether or not a sexual relationship existed;

4. the degree of financial interdependence, and any arrangements for support, between or by the parties;

5. the ownership, use and acquisition of property;

6. the procreation of children;

7. the care and support of children;

8. the performance of household duties;

9. the degree of mutual commitment and mutual support;

10. the reputation and `public' aspects of the relationship."

41 I note further that the second element, but not the first, requires not the existence of an objective state of fact, but the existence of the opinion of the Board about a state of fact. Such an emphasis may have significance: see e.g. the observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 273-277. If the decision-maker makes the finding of fact required by the first element, it must be satisfied of the fact. In addressing the second element, the decision-maker must in the circumstances then hold the opinion, at least to the extent that the factual inquiries required by each element overlap, that those matters exist. If the second element does add different or additional considerations for consideration, then the test as to whether they are met will be slightly different for the reasons explained in Wu Shan Liang. But, in this matter, I do not think the Board's decision was based upon any nuances of inquiry or emphasis imposed by the two elements of par 1B(a)(ii).

42 Perhaps the two elements exist because the first element is but an introductory element, to distinguish par 1B(a)(i) from par 1B(a)(ii) so that living together as husband and wife for at least three years is assumed then to be a permanent and bona fide domestic relationship whereas a shorter period requires more explicit consideration. If that be so, it points to the Tribunal's decision being focused upon the second element of par 1B(a)(ii) either alone or together with the first element.

43 Whatever the differences between the two cumulative elements of par 1B(a)(ii) of the Rules, I do not accept the contention that the Tribunal was not obliged to give effect to par 1C by having regard to evidence of substantial financial dependency because it reached its decision upon the first rather than the second of those two elements.

44 In my judgment, the Tribunal did not embark upon a separate or two stage consideration of the criteria in par 1B(a) in the way counsel for the respondent urged should be done. It did not say it was doing so. Its reasons indicate a focus upon whether the relevant relationship existed "at" the time of the deceased's death and whether the Board's conclusion on that question was fairly and reasonably open to the Board. The use of the time focus "at" the time of the deceased's death seems to point more to looking at the second element. Its reasons use the expression "permanent de facto" relationship as the relationship the Board and in turn the Tribunal addressed. That I take to be a paraphrase of the expression "permanent and bona fide domestic" relationship as used in pars 1A and in the second element of 1B(a)(ii). Alternatively, I think it could be seen as a compendious expression of living together as husband and wife on a permanent and bona fide domestic basis (used in par 1A and in the second element of par 1B(a)(ii) or as treating the two elements of par 1B(a)(ii) as involving a common question which it addressed as such. In my view, the Tribunal's reasons cannot be read as being based upon only the first element of par 1B(a)(ii).

45 In addition, in my view, evidence of substantial financial dependency is relevant evidence for the purposes of considering whether as a matter of objective fact two persons have been living together as husband and wife up to and at a particular time. In other words, in my view, par 1C is not confined in its application to the second of the elements of par 1B(a)(ii). It is not so confined; it is expressed as being generally for the purposes of par 1B. It does not say it applies only to par 1B(a)(ii) or to the second element of par 1B(a)(ii). The use of the expression "any relevant evidence" in the second element of par 1B(a)(ii) could not be construed as directing or authorising the decision-maker not to have regard to relevant evidence in addressing the first element, or the alternative in par 1B(a)(i). It would be irrational to do so. That may be said of each of the topics of relevant evidence in par 1C of the Rules. Indeed, it would be to attribute to the Rules, which are a statutory instrument (see ss 4 and 5 of the MSB Act), a very erratic intention in the face of the general introductory words of par 1C. There is no apparent reason why it should be perceived as necessary to direct what must (at least) be regarded as relevant for the purposes of the decision-maker addressing only the second element of par 1B(a)(ii) when the same decision-maker will also address par 1B(a)(i) and the first element of par 1B(a)(ii). At common law, financial dependency is regarded as a relevant consideration as to whether two persons are living together as husband and wife on a bona fide domestic basis: see e.g. per Powell J in Roy v Sturgeon referred to above. That is not to say that once there is financial dependency there is necessarily such a relationship. It is but one relevant factor to the judgment which must be made. But, in my judgment, the Tribunal was obliged to consider that factor.

46 The failure to take into account a relevant fact is an error of law; provided the relevance is prescriptive: per Bowen CJ in Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 54 FLR 334 at 341-342. In this instance, relevance of evidence of substantial financial dependency is in my view a prescribed relevant consideration: see Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 347-348 [73] and the cases cited therein.

47 It remains to determine whether the Tribunal did comply with par 1C of the Rules. Its reasons for decision are not to be construed with an eye keenly attuned to the perception of error: Wu Shan Liang at 271; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.

48 In this instance, the Tribunal expressly said financial dependency is:

"not relevant to the definition of spouse in the Rules nor to the payment of death benefit. Rather it is the nature of the relationship ... at the time of [the deceased's] death that must be determined."

49 It is hard to understand those words in any other way than as misconstruing the Rules. It is correct that the nature of the relationship at the time of the deceased's death which must be determined. Rule 38, as explained in par 9 and in turn in par 1A and 1B, clearly indicate that. But pars 1B(a)(ii) and 1C(a) direct that substantial financial dependence at the time of death is relevant to the determination of a spousal relationship and so to the eligibility to the payment of benefits under Rule 38. The Tribunal explicitly says to the contrary. It has also, by the use of the adverb "rather" in its introduction to identifying the relevant question, indicated financial dependency is not a relevant consideration. I cannot read the Tribunal's reasons as doing other than misstating what pars 1B(a)(ii) and 1C(a) prescribe. In my judgment, it has therefore fallen into an error of law.

50 Counsel for the respondent contended that the Tribunal's ignoring of financial dependence could not be said to have materially affected the Tribunal's decision, so the application should be dismissed in any event. I accept that the granting of relief under ss 46(3) and (4) of the SCA Act is discretionary, and should be granted only if the error of law found to exist may materially have affected the conclusion of the Tribunal: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 246; Comcare v Calipari [2001] FCA 1534. The same position obtains under s 44(4) of the Administrative Appeals Tribunal Act: Minister for Immigration & Ethnic Affairs v Gungor (1982) 63 FLR 441 at 454-455.

51 However, in this matter, I am not of the view that the Tribunal's error is not, or may not be, material to its decision. I think the facts and circumstances to which the Tribunal had regard are not so clearly indicative of the spousal relationship having ceased by 5 August 1997 that the Tribunal differently constituted, or even as constituted when the decision under appeal was made, but having regard to the financial dependency of the applicant upon the deceased might not have reached a different conclusion. I am mindful that the Court should not assess that question by itself stepping into the shoes of the Tribunal.

52 I therefore set aside the decision of the Tribunal and remit the matter to the Tribunal to be redetermined in accordance with these reasons. I understand the Tribunal will be differently constituted for the purposes of the redetermination, and I do not in that circumstance need to consider whether any direction to that effect should be made. I give the applicant liberty to apply to seek such a direction if so advised, and in that event it would be necessary to determine whether the Court has power to make any such order.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 7 February 2003

Counsel for the Applicant:	Mr B Cassells with Mr T Berkley
Solicitor for the Applicant:	Woodcock Solicitors
Counsel for the Respondent:	Ms D Mortimer
Solicitor for the Respondent:	Australian Government Solicitor
Dates of Hearing:	22 October 2002, 31 January 2003
Date of Judgment:	11 February 2003