Case: Furmage v Social Security Commission (1979-1981) New Zealand Administrative Reports Vol 2 page 75
Outcome: discussed
Accordingly the Tribunal reasoned that just as in normal parlance, it seemed to be unlikely that the relationship between the appellant and the deceased member, whereby they occupied separate residences, but saw one another regularly and even slept together on occasions, was one that would normally be described as 'ordinarily living together' , or necessarily 'permanent , or as having a 'bona fide domestic basis' , within par (b) of s 8A(2). The Tribunal considered that the following dictum of Barker J in Furmage v Social Security Commission (1979-1981) 2 NZ AR 75 at 80 to be here apposite, involving as it did the operation of the expression 'living together on a domestic basis' appearing in certain New Zealand social security legislation as follows, ' ... the Commission may in its discretion... regard as husband and wife, any man and woman who, not being legally married, are in the opinion of the Commission living together on a domestic basis as husband and wife and may in its discretion... terminate or reduce... any benefit already granted accordingly... '. As to the operation of that expression, the Commission contended as follows: 'Obviously all the elements of consortium need not appear in every relationship under [the legislative provision] just as they need not necessarily appear in every marriage. However, the Legislature has chosen to emphasise one element of consortium ie the "living together under one roof" aspect by its use of the words "on a domestic basis". The section requires more than ... "cohabitation"... and more than not "living apart"... [but]... has gone out of its way to add these limiting words to an otherwise fairly broad and flexible concept.' 16 As I have already indicated, the Tribunal considered that there was no qualifying marital relationship between the appellant and the deceased within s 8A(1) of the Superannuation Act essentially for the reasons I have summarised as well as cited, nor within what may be described as the deeming and illustrative provisions of s 8A(2). Accordingly in the Tribunal's opinion, whether the Trustee's decision was fair and reasonable in its operation depended on whether the circumstances of the appellant came within the scope of s 8B(3) of the Superannuation Act . So much also involved or concerned the issue whether the appellant was ' wholly or substantially dependent ' on the deceased at the time of his death within s 8A(4) , being the further issue to which I will now turn. 17 For the purposes of addressing that further issue, the Tribunal accepted, as indeed the Trustee pointed out, the extent of variation in the closeness of the relationship between the appellant and the deceased, over the years, but considered that ' ... it is the period nearest to [the time of death] that is the most important ', since ' [e]ven if earlier in the relationship the [appellant] was not so dependent, that is irrelevant if she was so dependent at the time of death ', and the Tribunal considered accordingly ' that it is most appropriate to concentrate on the last years and, having regard to s 8A(2) of the Act, the last three years, which is from 1992 on '. 43 The appellant made a further 'major complaint... that the Tribunal referred to the New Zealand case of Furmage ,' though not in relation to the passage from its reasons which I have earlier cited therefrom, but in relation to an earlier passage in those reasons at 79, where the following appears: 'However, I cannot ignore the additional words of the statute "on a domestic basis". I consider that these words require a living together under the same roof on a basis of some permanence.' It is apparent, from the Tribunal's citation of that passage, that the Tribunal had in mind part of the text of par (b) of subs 8A(2), where reference appears to ' ...ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis ' . It does not seem to me to have been inapposite to cite, whether for comparison or illustration of reasoning, that instance of judicial consideration of what was a not dissimilar text of statutory regulation. In the normal course, for a married couple to live under the same roof would at least assist exemplification as to what might constitute in certain circumstances ' ordinarily lived' by a ' ... husband or wife on a permanent and bona fide domestic basis ' with the other. Of course exceptional circumstances, such as residing in accommodation whilst absent for instance interstate on business, or in the course of visitation overseas of relatives, or in the course of hospitalisation, would normally fulfil in any event the subs 9A(5) circumstance of ' temporary absence' . 44 It follows from those conclusions that the appeal should be dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 5 April 2006 Solicitor for the Applicant: Ray Turner Solicitor Counsel for the Respondent: B Dube Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 November 2005 Date of Judgment: 5 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/373.html