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Key decisions

  • Case 834085 (concerning AustralianSuper Pty Ltd)
  • Ritossa v Ritossa [2023] NSWCA 14
  • Kuitkowski v Tream [2023] NSWSC 145
  • Walters v Perton [2023] VSC 37
  • WC (Review of Enduring Power of Attorney) [2023] TASCAT 25
  • Mielczarek by his tutor New South Wales Trustee and Guardian v Prendergast [2023] NSWSC 144
  • Protheroe v Protheroe [2023] NSWSC 188
  • Re Ian Steven Tolli; Ex parte Tolli [2023] WASC 71
  • In the Estate of Chambers [2023] SASC 34
  • Application of Jordan; Estate of Michael Galanis (aka Michael Galanakis) [2023] NSWSC 221

AFCA finding there was no de facto relationship

The issue in Case 834085 (concerning AustralianSuper Pty Ltd) was whether the claimed spouse met the legislative definition of ‘spouse’ under s 10 of the Superannuation Industry (Supervision) Act 1993 (Cth). The claimed spouse and the member were not married so satisfaction of the definition depended on the claimed spouse satisfying the requirement that she lived with the member on a ‘genuine domestic basis in a relationship as a couple’ (at 2).

AFCA accepted that, at the date of the member’s death:

  • the member was in a relationship with the claimed spouse, but this was best described as a ‘boyfriend/girlfriend’ relationship because, in part, of its short duration of two to seven months, for part of which time the member was in a rehabilitation facility or overseas;
  • the member was partially living with the claimed spouse but had not moved in all his day-to-day possessions or clothes, and he had not changed his address on any of his records to claimed spouse’s address. Therefore, there was no common residence between the claimed spouse and the member;
  • the member was informally contributing to some of the living expenses, including the claimed spouse’s mortgage, but the short duration of those contributions had not established any real expectation of ongoing payments (at 3-4). Also, because of the member’s drug dependency and related factors (such as court appearances and instability in employment), there was significant volatility in the member’s position;
  • the member and the claimed spouse had started to meet each other’s families and social circles; and
  • there was a sexual component to the relationship (at 3-6).

AFCA also noted:

  • the lack of a mutual commitment to a shared life together, despite the member being willing to sell his investment property to contribute to the claimed spouse’s mortgage. It considered that they ‘were still in a “honeymoon” period of their relationship and enjoying the experience sometimes known as “new relationship energy”. I do think the [claimed spouse] was of great support to the [member] in the months prior to his death and appears to have been a great source of his happiness. However, this is not enough to say there was a mutual commitment to a shared life of a spousal nature’ (at 5).
  • the lack of comingling of property.

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