Case: Roy v Sturgeon (1986) 11 NSWLR 454
Outcome: discussed
The appellant submitted in any event that what constitutes 'living together on a bona fide basis' is a matter to be determined on the facts of each case, drawing attention thereby to dictum of Powell J in Roy v Sturgeon (1986) 11 NSWLR 454 at 458-459, where the following appears: '... 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. reputation and "public" aspects of the relationship.' Those observations in Roy were made in the context of the De Facto Relationships Act 1984 (NSW), where the statutory definition of ' de facto relationship ' meant ' the relationship between de facto partners, being the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other' . Sections 8A and 8B of the subject legislation were of course enacted in 1992, and the text thereof is more specific than the earlier State of New South Wales legislation addressed in Roy . Part of the present statutory criteria addresses inter alia the s 8A(4)(d) requirement to consider evidence establishing whether ' the persons jointly owned a home which was their usual residence '. 31 In any event, the appellant's submissions continued to the effect that by limiting itself to a consideration of whether there was a common residence, the Tribunal applied the wrong test and failed to take account of other significant indicators such as what the couple themselves considered their relationship to be and what others, who knew the couple, considered the relationship to be. I have encountered difficult with that submission by the appellant, which to my perception derives insufficient support from the text of ss 8A and 8B, whether explicitly or implicitly. 32 Thereafter the appellant referred to the opinion of the Tribunal '... that when the [Superannuation] Act speaks of dependency it is referring primarily to financial dependency, so it is the sums of money paid by the Deceased Member to the Complainant in the period prior to his death that seem the most important consideration', and contended that in so finding, the Tribunal ignored the ordinary meaning of the word dependency which can include emotional and/or physical dependency. Emotional dependency is not readily susceptible of course to financial measurement. The criteria described by ss 8A and 8B are necessarily or at least expediently objective, and although subjective factors may well be sometimes relevant in evidentiary terms in order to throw light upon the satisfaction or otherwise objectively of the statutory requirement as to ' ordinarily living on a permanent and bona fide domestic basis ', it is not apparent that the same may compellingly enter the ultimate assessment or computation of a pension entitlement of a surviving spouse or partner otherwise existing pursuant to the Superannuation Act .