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

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) 174 CLR 430 – cited Bushell v Repatriation Commission (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) 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) 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) 99 FCR 562 – cited Lykogiannis v Retail Employees Superannuation Pty Ltd (2000) 97 FCR 36 – cited Australian Broadcasting Tribunal v Bond (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) 184 CLR 163 – cited Roy v Sturgeon (1986) 11 NSWLR 454 – cited Minister for Immigration & Ethnic Affairs v Wu Shan Liang (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) 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