Bennett v SAS Trustee Corporation and anor

Family Provisions Act 1982 LEGISLATION CITED: Police Regulation (Superannuation) Act 1906 s1, s11AA Property (Relationships) Act 1984 s4 Superannuation Administration Act 1996 s88

Petersen v Gregory; the estate of Glen Alfred Petersen [2007] NSWSC 8 CASES CITED: Sharpless v McKibbin [2007] NSWSC 1498 Ye v Fung [2006] NSWSC 243

TEXTS CITED: The Macquarie Dictionary, Second Edition 1991

APPELLANT Paul Graham Bennett in person

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr T Ower of counsel Solicitor: Mr R Blume SECOND RESPONDENT Margaret Shoebridge (formerly Schofield) in person

Paul Graham Bennett v SAS Trustee Corporation and anor

Application to appeal against the decision of the SAS Trustee Corporation given on 4 April 2007.

1 This is a superannuation appeal in which the appellant is Paul Graham Bennett, the first respondent is SAS Trustee Corporation and the second respondent Margaret Schofield. Although the appeal document is inadequately phrased, the appeal is from a decision of the first respondent to pay a superannuation allowance pension to Ms Schofield on the basis that she was the de facto partner of the appellant's late father at the time of his death and had been his de facto partner for at least the preceding three years. 2 The superannuation appeal document asserts that the decision to pay the pension was "based on fraud, deceit and no evidence of a de facto relationship" and referred to false information being contained in a death certificate and in other documentation. 3 The appellant sought a variety of orders including the award of certain monies to the estate of his father, the late Paul Russell Bennett, of which the appellant was one of two executors and a beneficiary. The statutory matrix

4 Appeals lie from a decision of the first respondent in connection with its administration of the several superannuation schemes which are vested in it by relevant legislation to this Court under s 88 of the Superannuation Administration Act 1996 ("the Act"), which is in the following terms. 88 Appeals

(1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission). (2) The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC or the STC disputes committee, as the case may be, in making the determination the subject of the appeal. (4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant. (5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit. (6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 5 The nature of the appeal and the manner in which it is to be dealt with is now well settled. It is an appeal by way of a hearing de novo to be determined by reference to the state of the evidence and other material which it is appropriate to consider as at the date of the hearing of the appeal. 6 S 11AA of the Police Regulation (Superannuation) Act 1906 makes provision for the grant of a superannuation allowance to the surviving spouse or de facto partner of a former member of the police force. It was operative at the time of the death of the late Mr Bennett. Relevantly, sub-s (1) is in the following terms. 11AA Grant of superannuation allowance to the surviving spouse or de facto partner of a former member of the police force who dies after the commencement of Schedule 1.4 [10] to the Superannuation Legislation Amendment Act 1997

(1) If a former member of the police force to whom a superannuation allowance has been granted dies on or after the commencement of Schedule 1.4 [10] to the Superannuation Legislation Amendment Act 1997, and that former member is survived by a person who: (a) was the spouse or de facto partner of that former member both at the time of the former member's death and at the time of the former member's retirement (whether by disablement or otherwise), or (b) in the case of a former member who retired because of disablement, was the spouse or de facto partner of that former member: (i) both at the time of the former member's death and for at least the preceding 3 years, and (ii) became the spouse or de facto partner of the former member before the former member attained the age of 60 years, that spouse or de facto partner is entitled to receive a superannuation allowance equivalent to 62.5 per cent of the superannuation allowance that would have been payable to that former member from time to time if that former member had not died. 7 The controversy in these proceedings was confined to whether or not Ms Schofield was the de facto partner of the late Mr Bennett at the time of his death and for at least the preceding three years. 8 By s 1 of the Police Regulation (Superannuation) Act, "de facto partner" is defined to mean a person who was in a de facto relationship within the meaning of the Property (Relationships) Act 1984. That meaning is to be found in s 4 of that Act which is in the following terms. 4 De facto relationships

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship. The evidentiary material

9 A great deal of documentary evidence was tendered in the proceedings. The appellant was self-represented and some of the material which he sought to be adduced in the proceedings was not strictly admissible in accordance with the rules of evidence. However, by s 88(5) of the Act, this Court is not bound by the rules of evidence in these proceedings and I accepted such material as I determined was relevant to the proceedings and to which it was appropriate to have regard in deciding them. As will become evident, there was a body of evidence upon which the appellant sought to rely but which was either irrelevant or did not assist him in the case which he sought to make out. 10 The late Paul Russell Bennett (whom I shall hereinafter refer to as "the deceased") was born on 11 March 1945. He became a member of the New South Wales Police Force on 9 August 1971. He had married Sylvia Jean Bennett on 15 February 1964. That marriage was dissolved on 22 October 1976. There appear to have been six children of that marriage. In about 1980, the deceased met Margaret Anne Schofield with whom he formed a relationship. I am satisfied on evidence provided by Ms Schofield, the appellant's brother Michael Richard Bennett and others that Ms Schofield's life and that of her two children from an earlier marriage became entwined with that of the deceased and his children from that time onwards although they do not appear to have lived together as a couple until 1997. During the intervening period, I am satisfied that to the extent compatible with the various locations at which the deceased performed his duties as an officer in the New South Wales Police Force he spent a considerable time with Ms Schofield and her children at a property she owned at Albion Park Rail. In general terms, there was evidence that Ms Schofield and the deceased celebrated a large number of events together including the birthdays of their children, family Christmas celebrations, christening of grandchildren, weddings and the like. As Michael Bennett said in his affidavit, "For the majority of my childhood I remember Margie (referring to Ms Schofield) being part of my life, and her children…being my brothers. Dad moved around with the police force but Margie and her children always visited and we spent time at their place too." 11 In about May 1997, the deceased moved his residence to the Albion Park Rail property and commenced living with Ms Schofield. 12 A medical report of Dr Leonard Harvey, a consultant physician, dated 3 February 1999 addressed to the respondent noted the deceased's address at Albion Park Rail. Dr Harvey obtained a history of the deceased beginning to experience discomfort around his right heel in about 1995. In June 1997, he consulted a local medical practitioner, a biopsy was carried out and in September 1997 a melanoma was excised from the right heel, necessitating a skin graft from the bottom of the left foot. The deceased did not return to work after that operation. He complained to Dr Harvey that he became anxious and experienced panic attacks for which he received medication from a psychiatrist. Despite that treatment and the settling of his anxiety panic condition, the deceased told Dr Harvey that his condition "did not return to normal." 13 Subsequently, the deceased was discharged from the police force as medically unfit and became entitled to a disability pension. A letter from the respondent to the deceased dated 31 March 1999 was addressed to him at the Albion Park Rail address. The deceased continued to live with Ms Schofield at the Albion Park Rail address until 7 September 1999 when they jointly purchased a house at Kiama Downs. A land titles search shows that the property was purchased as tenants in common in equal shares. 14 There are a number of other indicia of the joint involvement of the deceased and Ms Schofield in each other's affairs. These include: 1. In September 2000, the deceased and Ms Schofield purchased adjoining burial allotments. 2. When he applied for an invalidity benefit to the respondent on 14 April 1999, the deceased showed his address as at Albion Park Rail and nominated Ms Schofield, also of the same address, as his de facto spouse. 3. Both the deceased and Ms Schofield jointly instructed Hansons Lawyers of Wollongong concerning a number of matters. 4. Both the deceased and Ms Schofield jointly instructed Greg Rodgers and Associates Pty Ltd Accountants in connection with the preparation of taxation returns for the years ended 30 June 1999 to 30 June 2003. The accountants were instructed by each of them to claim each other as a dependent spouse. 5. On 26 June 2000, the deceased, showing his address as at Kiama Downs, changed his Manchester Unity Hospital Cover from single private shared to family super. 6. In 1999, the account previously held by the deceased in his name only with the Police Credit Union was changed to a joint account in the name of the deceased and Ms Schofield. A letter from the Police Credit Union, undated, states that "the account is a savings account with payroll directed to it and mortgage payments being debited from it." 15 It was the evidence of Ms Schofield that in about mid-2002, the deceased's "behaviour and personality began to change dramatically. He became very difficult to live with and in September 2002 I moved out of our family home to stay with my sister." Although they were then living apart, it was the evidence of Ms Schofield and other witnesses that during this time she remained in constant contact with the deceased, spoke to him every day on the telephone and they saw each other "several times a week." The deceased continued to live in the then family home at Kiama Downs until December 2002 when he moved into a flat in West Wollongong for "a couple of weeks." However, he then returned to the Kiama Downs property before Christmas 2002. It was Ms Schofield's evidence that she could not understand what was happening to the deceased and why his behaviour had changed. However, in December 2002 the deceased was diagnosed with tumours in the brain. At that stage, she returned to the family home and they continued to live together whilst she cared for him until his death on 26 April 2003. 16 Evidence about these circumstances towards the end of the deceased's life was also given by Michael Bennett. In his affidavit he said, speaking of the period between September and December 2002, that at that time "we were unaware of Dad's tumour but the effects, in hindsight, were obvious. He had sudden and numerous mood swings and often his sentences were muddled. Dad spent a lot of time at our house during this time and he was extremely distraught over the break up. However, he did keep in contact with Margie (a reference to Ms Schofield) via us, particularly as Margie had concerns about his health. Margie explained to us at the time that due to the mood swings and aggressive behaviour she was unable to live with Dad. It was finally Margie who convinced Dad to see a doctor and she went with him and was with him when he was diagnosed with a tumour. After we realised the reasons behind Dad's changed behaviour, we all understood and could support him. Margie looked after him during the last few months. I have no doubt that Margie and Dad loved each other and were committed to each other. They did have their ups and downs as most relationships do, however, I have always considered Margie to be my father's partner both before and after his death." 17 In an affidavit, another brother of the appellant, David Bennett, said, "To the best of my knowledge he (a reference to his late father) was in a de facto relationship with Margaret Schofield from March 1997 until his death on 26 April 2003." 18 Evidence was also given by Katherine Bodorkos, the sister of Ms Schofield, and by Janet Louise Smith, who was a neighbour and friend of both Ms Schofield and the deceased when they were living at Albion Park Rail. These witnesses corroborated the evidence of Ms Schofield and demonstrated that from 1997 until the time of the deceased's death in April 2003, and apart from the brief period at the end of 2002, the deceased and Ms Schofield lived together in the one household as husband and wife and shared the same bed. 19 Immediately after the death of the deceased, information was given by Ms Schofield to a representative of the funeral parlour which conducted the funeral. The evidence is not clear as to how many of the deceased's sons were present during that conversation. It was the recollection of the appellant that he was outside smoking when that conversation occurred. It was the recollection of Ms Schofield that he was present and heard the information that was conveyed by her to the funeral parlour representative. That information was subsequently conveyed to the Registrar, New South Wales Births Deaths and Marriages, and was contained within the death certificate which was ultimately issued. It recorded that Ms Schofield was the de facto spouse of the deceased. 20 The appellant disputed that Ms Schofield was the de facto spouse of his late father. In September 2004, he asked that the Registrar amend the death certificate to remove reference to Ms Schofield as the deceased's de facto spouse. In February 2005, the Registrar declined to do so but did amend the death certificate by deleting reference to the period of the de facto relationship, which had clearly been incorrectly shown in the original certificate. 21 The appellant then applied to the Administrative Decisions Tribunal of New South Wales for an order that the death certificate be varied so as to remove reference to Ms Schofield as the de facto spouse from it. In a decision of 2 February 2006, a judicial member of the Tribunal rejected the appellant's application. In doing so, the Tribunal referred to evidentiary material which had been put before it including the evidence of Ms Schofield, Messrs David and Michael Bennett and documentary evidence. After reviewing relevant authorities including authorities dealing with the definition of de facto spouse in the Property (Relationships) Act and in the Family Provisions Act 1982, the Tribunal dismissed the appellant's application and affirmed the decision of the Registrar to include reference to Ms Schofield as a de facto spouse of the deceased in the death certificate. 22 From this decision, the appellant appealed to an appeal panel of the Administrative Decisions Tribunal of New South Wales. Leave to appeal was refused and the decision of the Tribunal was affirmed. 23 Accordingly, this is the third occasion on which the appellant has sought to litigate whether or not Ms Schofield was the de facto spouse of his late father. 24 I should add for completeness that in his will, the deceased appointed his children David Bennett and the appellant as executors and trustees and bequeathed the whole of his estate to his surviving children. The appellant's case

25 The first witness called by the appellant was his brother, Christopher Mark Bennett. In an affidavit prepared for the hearing, Mr Christopher Bennett referred to occasions when he had spent time with his late father. He referred to holidays at a caravan park at Huskisson in "1978 or 1979", to helping his father build a garage and renovations in "1980 to 1981" to visiting his father, "Bev and numerous of his friends" during a two-week visit "over 1985 and 1986", to a number of trips taken with his father as a "pinion" passenger to visiting his father "from 1991 to 1993" who was then living with his brothers Paul and Michael and "the three girlfriends he had at that time", to day trips taken to attend car auctions over a period of "years" and the like. More specifically, Mr Christopher Bennett said that he stayed with his father for a month in 2000 during which he was "lonely and isolated" and that his father called him "in 2002" in a distraught state. 26 In cross-examination, it transpired that Mr Christopher Bennett had seen the deceased in September 2002 at a time after Ms Schofield had moved out of the family home. Furthermore, Mr Christopher Bennett gave evidence that the deceased moved to Kiama Downs in 2000 and agreed that whilst living there he was living with Ms Schofield. 27 When asked whether Ms Schofield was with his father after December 2002, he said, "As far as I know Margaret Schofield was his carer and he also had a nurse…" 28 When asked some questions by Ms Schofield, who represented herself in the proceedings, Mr Christopher Bennett remembered coming to the home at Kiama Downs in Christmas 2001 and that Ms Schofield was living there at that time with his father. He agreed that he spent the Christmas celebration at that home with his brothers and their partners and that he had spent other times at the home at Albion Park Rail. Furthermore, he agreed that he had stayed with Ms Schofield and the deceased at their home. 29 A great deal of the documentary evidence tendered by the appellant was directed to what he described as the error in the death certificate referring to Ms Schofield as a de facto spouse and the errors that he asserted were made by the Administrative Decisions Tribunal both at first instance and on appeal. 30 Some of the documentary evidence assembled by the appellant was put forward in an effort to disprove the fact that during the relevant period the deceased and Ms Schofield were living together as a couple. For example, he referred to an electoral roll search that showed that in February 1999 the deceased had not changed his address from one previously notified in Drummoyne where he had lived for some years with a number of his sons. He asserted that Ms Schofield's evidence that she had been in constant daily contact with the deceased during the period September to December 2002, even though they were living apart, was incorrect because telephone records do not indicate that telephone calls had been made between them as shown on the printout of the account. However, as Ms Schofield pointed out, those records only showed the details of STD calls but did not show the details of local calls and they were both residing within the one local telephone area. Thus this argument had no validity. 31 The appellant noted that Ms Schofield had remarried after his late father's death. He asserted that this was, in some way, indicative that she was in another relationship while he was alive and therefore could not have been living as husband and wife with the deceased. However, it was the evidence of Ms Schofield that she remarried in 2006 having met her husband about one year previously. This was, of course, well after the death of the deceased. 32 The appellant said that the deceased was so mentally ill that he was incapable of entering into a relationship with Ms Schofield and that this was particularly so in 1997. In support of this contention, he relied on the report of Dr Harvey to which I have earlier referred. However, that report although mentioning that the deceased suffered from anxiety, depression and panic attacks also noted that the deceased's condition had "settled with medication" although he remained anxious and unsettled. There is nothing in this report dated February 1999 that would indicate that the deceased was in any way unable to form the necessary attachment to found a de facto relationship. 33 There are a number of other allegations made by the appellant that I do not intend to dignify with any detailed discussion. They include allegations of fraud in connection with the manner in which affidavits tendered on behalf of the respondents were sworn and in some way suggesting some impropriety on the part of the Justice of the Peace who witnessed them. There is simply no evidence that would form an appropriate basis for any such allegations. 34 It is clear from the material tendered by the appellant that he has gone to great lengths to attempt to disprove any necessary relationship between Ms Schofield and the deceased. He has written to Manchester Unity, to a number of banks and financial institutions, to Centrelink, to Kiama Municipal Council, the Australian Taxation Office, the New South Wales Police Service, the Guardianship Tribunal, State Super and, on many occasions, the Registrar of Births, Deaths and Marriages. 35 Furthermore, the appellant has alleged that in some way the respondent has breached its duties and obligations as a trustee by determining to pay a pension to the deceased instead of paying him a lump sum, which would have been available for his estate. This allegation is made notwithstanding that the relevant legislation governing the payment of superannuation benefits does not permit a lump sum to have been paid to the deceased. Furthermore, the appellant has alleged that the respondent has acted fraudulently. There is simply no evidence that would support any such allegation. Was there a de facto relationship during the relevant period?

36 I have previously set out the definition of a de facto relationship contained within s 4 of the Property (Relationships) Act 1984. There are two concepts contained within the definition against a factual/legal background. I can deal with one of these matters easily because there is no controversy about it. There is no suggestion that either the deceased and Ms Schofield were married or that they were related to one another by family. This leads to a consideration of the two conceptual matters. The first is the requirement that there be "a relationship" between them. The second is that they live together "as a couple". 37 A relationship signifies a connection between two people of an emotional kind. The Macquarie Dictionary defines "relationship", in part, as "3. an emotional connection between people, sometime involving sexual relations."

38 There have been suggestions in decided cases that a relationship for the purpose of the s 4 definition particularly in the context of persons living as a couple was indicative of a relationship of a romantic kind involving, at least initially, persons "united by love." (See, for example, the observations of Gzell J in the Supreme Court of New South Wales in Ye v Fung [2006] NSWSC 243 at [64] and [65].) However, concepts such as love and romance are not necessarily understood by everyone in absolute terms, particularly having regard to the age of the persons in the relationship. I recognise that the expression "emotional attachment" is perhaps just as nebulous as concepts of love and romantic attachment but it seems to me that this is a more apt expression, particularly as a de facto relationship is intended to describe a situation where persons are living together in the same kind of relationship as would have existed if they had been married. (I leave to one side, and ignore for the purpose of this discussion, any reference to same sex couples). I observe also that, perhaps, it is not appropriate to discuss what is a relationship without discussing also the second requirement that the persons involved in the relationship be living together as a couple. 39 This requires an examination of the circumstances of the relationship in the context of what is meant by living together as a couple. This is a matter that was addressed by Barrett J in Petersen v Gregory; the estate of Glen Alfred Petersen [2007] NSWSC 8. His Honour said: "The central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting. It is that which causes two persons residing under the same roof to be living 'together as a couple'…" (At [11]). 40 There is a requirement that the parties to the relationship be recognised as engaged in a relationship which extends beyond merely residing under the same roof together or sharing the same property. There needs to be some indication of the establishment of a single household in which each of the parties is a participant. I have already referred to the concept of persons living together as though they were, in reality, a married couple. Whether and to what extent this has occurred will obviously be a matter for evidence. In characterising whether persons can be said to be living together as a couple, one needs to take into account the range of circumstances in which persons do live together as a couple because it will be readily apparent that there are no absolute indicia in this regard. For example, some married couples keep separate bank accounts. Persons who marry late in life or who are entering relationships for a second or later time will often maintain some independence from the new relationship in terms of property or pre-existing relationships with friends, family and the like. I think it is necessary, when determining whether persons are living together as a couple, to take into account all of the circumstances of the relationship and all of their personal circumstances which are appropriate to be considered in a sociological sense. 41 Of course, some assistance is to be gained by reference to the nine matters referred to in s 4(2), although they are not necessarily to be given equal weighting and only those that are applicable in the circumstances are to be considered. 42 Finally, I note that as the authorities make clear, it is not necessary that the parties actually cohabit for the totality of the duration of the relationship in order to be considered as living together as a couple. See, for example, Sharpless v McKibbin [2007] NSWSC 1498 at [38] per Brereton J. Conclusion

43 In my opinion, the totality of the evidence given in these proceedings allowed me to conclude that the late Paul Russell Bennett was in a de facto relationship with the second respondent, Ms Schofield, from May 1997 until his death in April 2003. The evidence is overwhelmingly to the effect that these two persons shared the same house during this period, that they shared the same bed, that their financial affairs were intertwined and that they were regarded by members of their family and by others as being in a relationship as a couple. The evidence given by the several witnesses to the effect that the late Mr Bennett and Ms Schofield were in a relationship as a couple was based upon their observations about the circumstances in which those persons co-existed and presented themselves to others as living together as if, for all practical purposes, they were a married couple. It is also clear from the evidence given in the proceedings that there was an emotional attachment to each other on the part of each of these persons. 44 Furthermore, on the basis of the evidence as given I conclude that the relationship between the late Mr Bennett and the second respondent was not relevantly interrupted during the three month period when they lived apart, especially as the conduct of the late Mr Bennett which brought about the temporary separation was a symptom of the underlying medical condition which afflicted him at the time. 45 Based on all of the evidentiary material put before the Court in the course of these proceedings, I am not persuaded that there is any merit in the appeal instituted by the appellant. Having regard to all of the evidentiary material and in conformity with the powers and function of the respondent as established by the statutory regime in which it operates, I conclude that the STC was warranted in determining to pay to Margaret Schofield a superannuation allowance pension in accordance with s 11AA(1)(b) of the Police Regulation (Superannuation) Act 1906, on the basis that she was the de facto partner of the late Paul Russell Bennett at the time of his death and for at least the preceding three years. 46 Accordingly, the appeal is dismissed. Costs

47 The question of costs was not raised before me during the course of the proceedings. Accordingly, I shall reserve costs. Any application should be made within one month of this date. Orders

48 I make the following orders. 1. The appeal is dismissed. 2. Costs are reserved, liberty to apply with respect to costs which should be exercised within one month of this date.

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