Commonwealth Superannuation Corporation v Truan [2020] FCA 364

FEDERAL COURT OF AUSTRALIA

Commonwealth Superannuation Corporation v Truan [2020] FCA 364 Appeal from: Truan and Commonwealth Superannuation Corporation [2019] AATA 555

File number: VID 416 of 2019

Judge: BROMBERG J

Date of judgment: 18 March 2020

Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal ("Tribunal") – spouse's pension under s 39 Defence Force Retirement and Death Benefits Act 1973 (Cth) ("DFRDB Act") – appellant and deceased spouse married but not living together – whether marital relationship at time of death for purposes of s 6A(1) of DFRDB Act – s6A(5)(b) DFRDB Act: person taken to be living with another person if satisfied that would have been living with other person except for period of absence because of special circumstances – where Tribunal found deceased spouse's post-traumatic stress disorder was special circumstance – whether Tribunal failed to consider lack of mutual intention to reconcile as reason for absence – whether Tribunal failed to consider objective evidence in determining that respondent held an intention to reconcile – appeal dismissed.

Legislation: Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 3, 6A(1), 6A(5)(b), 6B and 39

Cases cited: Anees v Minister for Immigration and Border Protection [2020] FCAFC 28 Beezley v Repatriation Commission [2015] FCA 78 CCA19 v Secretary, Department of Home Affairs [2019] FCA 946 Gray v Defence Force Retirement and Death Benefits Authority [2004] AATA 450 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527 Rus v Comcare [2017] FCA 239 Salton v Commonwealth Superannuation Corporation (2013) 209 FCR 349 Thiess v Collector of Customs (2014) 250 CLR 664