THE TRIBUNAL'S DECISION
4 Section 37(6) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act) provides that the Tribunal must affirm a decision under review if it is satisfied that the decision and its operation in relation to the complainant and any person who has become a party to the complaint and has an interest in the death benefit was fair and reasonable in the circumstances. The Tribunal was not so satisfied and, in accordance with s 37(3), (4) and (5), it set aside the Trustee's decision and substituted its own decision.
5 Section 37 of the Complaints Act in totality provides as follows:
37 Tribunal powers - complaints under section 14
(1) For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14:
(a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and
(b) subject to subsection (6), must make a determination in accordance with subsection (3).
(2) If an insurer or other decision‑maker has been joined as a party to a complaint under section 14:
(a) the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer or other decision‑maker that is relevant to the complaint; and
(b) for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision‑maker; and
(c) subject to subsection (6), must make a determination in accordance with subsection (3).
(3) On reviewing the decision of a trustee, insurer or other decision‑maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:
(a) affirming the decision; or
(b) remitting the matter to which the decision relates to the trustee, insurer or other decision‑maker for reconsideration in accordance with the directions of the Tribunal; or
(c) varying the decision; or
(d) setting aside the decision and substituting a decision for the decision so set aside.
(4) The Tribunal may only exercise its determination‑making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists.
(5) The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract.
(6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:
(a) the complainant; and
(b) so far as concerns a complaint regarding the payment of a death benefit - any person (other than the complainant, a trustee, insurer or decision‑maker) who:
(i) has become a party to the complaint; and
(ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;
was fair and reasonable in the circumstances.
6 Both Mrs Ievers and Mr Hattingh were legally represented before the Tribunal but the Tribunal's deliberations were on the papers after the Tribunal had been supplied with detailed submissions from Mrs Ievers, Mr Hattingh and also the Trustee.
7 The Tribunal recorded (at [13]) that the Trustee had rejected Mr Hattingh's claim that he was the de facto spouse of the deceased member, Ms Redfearn. The Trustee asserted that pursuant to its Trust Deed and the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations), a death benefit could normally only be paid to a dependant, the legal personal representative or a combination of a dependant and the legal personal representative. The Trustee resolved to pay 100% of the death benefit to the legal personal representative, Mrs Ievers.
8 The Tribunal noted (at [14]) that Ms Redfearn was born 12 June 1990 and joined the fund on 16 June 2008. On 20 April 2011, she was found by Mr Hattingh in the garage of their rented home after a suspected suicide attempt. Two days later she died. Letters of Administration were granted to Mrs Ievers as her legal personal representative on 15 August 2011. On 10 November 2011, the police in Queensland dispatched their coronial file regarding the sudden death of the deceased member to the coroner for his consideration. On 12 October 2012, sworn witness statements from the Coroner's investigation were made available to the parties to the complaint to the Tribunal and on 30 May 2013, the Coroner wrote to the legal personal representative declining her request that an inquest be held into the deceased member's death.
9 The amount of Ms Redfearn's account balance as at 26 February 2015 which shortly before the date of the Tribunal's decision was $265,225.88 and included an insured benefit of $228,000.
10 The Tribunal noted (at [17]-[20]) that the key provisions of the Trust Deed and legislation at the date of death were as follows:
1 DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
…
'Dependant' of a Member means any person who is or was at the relevant time:
(a) a Spouse of the Member; or
(b) a Child of the Member; or
(c) dependent upon the Member for maintenance or support; or
(d) in an Interdependency Relationship with the Member, where the relevant time occurs on or after 1 July 2004.
'SIS' means the Superannuation Industry (Supervision) Act 1993 and includes the regulations to it.
1.2 Definitions from SIS
In this Deed unless the context otherwise requires, the following expressions have the meanings given to them in SIS:
…
• 'Interdependency Relationship'
• 'Legal Personal Representative'
• …
• 'Spouse'
11 BENEFITS
…
11.8 Death Benefits
(a)- (c) [not applicable]
(d) On the death of a Member:
(i) [not applicable]
(ii) [not applicable]
(iii) otherwise, the Trustee must pay the benefit to such of the Member's Dependants or Legal Personal Representative, in such proportions, as the Trustee determines.
…
11.16 Evidence of entitlement to benefits
(a) Any person claiming a benefit from the Fund must on request of the Trustee produce to the Trustee such information or evidence, and execute such documents, as the Trustee reasonably requires to establish the person's entitlement to the benefit.
(b) The Trustee when deciding a person's entitlement to a benefit may rely on proofs or presumptions the Trustee considers satisfactory whether or not the proofs or presumptions relied on are strictly legal proofs or presumptions.
(c) The Trustee may refuse to pay a benefit to any person until the Trustee's requirements for information, evidence or documents have been complied with to the Trustee's satisfaction.
...
11 Certain provisions of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act):
DIVISION 2 INTERPRETATION
10 Definitions
'dependant', in relation to a person, includes the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship.
'spouse' of a person includes:
(a) another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and
(b) another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.
12 Section 10A of the SIS Act provides as follows:
Interdependency relationship
(1) Subject to subsection (3), for the purposes of this Act, 2 persons (whether or not related by family) have an interdependency relationship if:
(a) they have a close personal relationship; and
(b) they live together; and
(c) one or each of them provides the other with financial support; and
(d) one or each of them provides the other with domestic support and personal care.
(2) Subject to subsection (3), for the purposes of this Act, if:
(a) 2 persons (whether or not related by family) satisfy the requirement of paragraph (1)(a); and
(b) they do not satisfy the other requirements of an interdependency relationship under subsection (1); and
(c) the reason they do not satisfy the other requirements is that either or both of them suffer from a physical, intellectual or psychiatric disability;
they have an interdependency relationship.
(3) The regulations may specify:
(a) matters that are, or are not, to be taken into account in determining under subsection (1) or (2) whether 2 persons have an interdependency relationship; and
(b) circumstances in which 2 persons have, or do not have, an interdependency relationship.
13 Regulation 1.04AAAA of the SIS Regulations provides:
(1) For paragraph 10A(3)(a) of the Act, the following matters are to be taken into account in determining whether 2 persons have an interdependency relationship, or had an interdependency relationship immediately before the death of 1 of the persons:
(a) all of the circumstances of the relationship between the persons, including (where relevant):
(i) the duration of the relationship; and
(ii) whether or not a sexual relationship exists; and
(iii) the ownership, use and acquisition of property; and
(iv) the degree of mutual commitment to a shared life; and
(v) the care and support of children; and
(vi) the reputation and public aspects of the relationship; and
(vii) the degree of emotional support; and
(viii) the extent to which the relationship is one of mere convenience; and
(ix) any evidence suggesting that the parties intend the relationship to be permanent;
(b) the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was, in an interdependency relationship with the other person.
(2) For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:
(a) they satisfy the requirements of paragraphs 10A(1)(a) to (c) of the Act; and
(b) one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, rather than by a mere friend or flatmate.
Examples of care normally provided in a close personal relationship rather than by a friend or flatmate
1. Significant care provided for the other person when he or she is unwell.
2. Significant care provided for the other person when he or she is suffering emotionally.
14 The Tribunal focussed on the competing submissions of the parties on the question of whether Ms Redfearn and Mr Hattingh had terminated their de facto relationship as at 20 April 2011, or whether it continued.
15 The Trustee itself was of the view that Mr Hattingh could not be regarded as a dependant of Ms Redfearn, either as her de facto spouse or as her interdependent. As Ms Redfearn was survived by no known dependants but by a legal personal representative, pursuant to the Trust Deed and superannuation law, the Trustee was required to pay the benefits to the legal personal representative. Ms Redfearn had made no nomination of a preferred beneficiary of the Fund benefit, nor did she have a will.
16 Ms Hattingh as complainant before the Tribunal provided a large amount of information to it, only a small portion of which the Tribunal regarded as being relevant.
17 The Tribunal recorded the following matters (at [24]):
The Trust Deed requires the Trustee on the death of Ms Redfearn to pay the benefit to one or more of Ms Redfearn's dependants and the legal personal representative pursuant to the Trustee's discretion.
The Trust Deed defines dependants as:
(a) a spouse
(b) a child, or,
(c) a person dependant [sic-dependent] on the member for maintenance or support.
Ms Redfearn had no children at her death; the only possible dependant Ms Redfearn had was her de facto spouse - Mr Hattingh.
In the alternative, Mr Hattingh was a person dependent on Ms Redfearn for maintenance and support and was financially dependent on her.
The issue of whether there was domestic violence in a relationship is not a relevant issue in determining whether a relationship existed.
It was asserted by Mrs Ievers that the purchase of a one-way plane ticket by Ms Redfearn to visit her was proof the relationship had been terminated by Mr Hattingh on or before 18 April 2011. But the Tribunal said the fact is Ms Redfearn did not board the plane, but rather elected to stay with Mr Hattingh. This was evidence Ms Redfearn did not want to fly interstate and had not severed her relationship with Mr Hattingh.
The fact Mr Hattingh left the airport without Ms Redfearn was not evidence that no relationship existed at the time of Ms Redfearn's death. One of Ms Redfearn's co-workers who was with Ms Redfearn at the airport when Mr Hattingh departed has attested:
[Mr Hattingh] then got out of the car and said, 'Look, just get on the plane and go I will be here when you get back I promise I will be here when you get back.' [Name of co-worker] adds '[Ms Redfearn] kept saying, "I'm not going" [Mr Hattingh] said to me, 'Should I leave?' I said, 'yeah, just go'. [Mr Hattingh] then went out to his car and started to drive off.
Contrary to the assertions of Mrs Ievers, none of the statements of police attending on 20 April 2011 state that Mr Hattingh advised them that Ms Redfearn had:
[attempted suicide] because he had ended the relationship.
The Trustee's assertion that:
[w]itness statements for these investigations report that the relationship broke down prior to death, and [Mr Hattingh's] termination of the relationship was the cause of the deceased's hanging 2 days later
was only supported by statements from Mrs Ievers and Ms Redfearn's step-father, neither of whom ever resided where Ms Redfearn lived and they were only relying on third party feedback to draw this conclusion. None of the co-workers of Ms Redfearn have made sworn statements that Ms Redfearn or Mr Hattingh moved out of their rented home prior to the incident on 20 April 2011.
The fact is Ms Redfearn and Mr Hattingh did spend the night of 19 April 2011 in their rented home; to the extent it can be inferred from the incident at the airport that the relationship had broken up, it can equally be inferred from the subsequent night spent together that Ms Redfearn and Mr Hattingh were reconciled.
There is no probative evidence supporting the assertion that Mr Hattingh had received assistance from friends to move out of their rented home prior to the incident. In fact there is no evidence in the Coroner's investigation or in any witness statements supporting the contention that Ms Redfearn and Mr Hattingh were not living together up until the incident; the evidence is all to the contrary.
In respect of Mr Hattingh's actions after the incident, regard should be had to Mr Hattingh's statutory declaration dated 20 March 2012:
On the date of [Ms Redfearn's] accident I made a spur of the moment decision to drive from [city] to [city] that afternoon because [Ms Redfearn] was being transferred to the [city] Hospital. I authorised [city] Hospital to transfer [Ms Redfearn] as her de-facto. I opted to drive because there were no available flights leaving that evening and I was desperate to be with her.
He further states:
After [Ms Redfearn's] death I was in a bad way and I could not bear the thought of returning home to [city] without her. I therefore decided to stay in [city] with my family at [address]. My friend, [name], packed up the house at [city] and arranged for my belongings to be returned within a week after [Ms Redfearn's] death. When [name] attended at the house most of [Ms Redfearn's] belongings had been taken and all of our mail and paperwork had been removed by persons unknown but without my consent.
This is consistent with statements made by Mrs Ievers as to the arrangements she made for Ms Redfearn's belongings to be uplifted on the morning of 28 April 2011 by a removal company.
No sexual relationship existed between Mr Hattingh and another woman prior to Ms Redfearn's death; the suggestion that the number of calls and texts between Mr Hattingh and this other woman, subsequent upon Ms Redfearn's incident, is indicative of a pre-existing affair is inappropriate, unfair and wrong.
The Trustee queried why Mr Hattingh did not contest Mrs Ievers' Grant for Letters of Administration. A de facto spouse has the highest priority to apply for a Grant of Administration. No request was made to Mr Hattingh to renounce his status in that regard, or consent to the application by Mrs Ievers.
Mr Hattingh was financially dependent on Ms Redfearn. Ms Redfearn did not have a bank account and all Ms Redfearn's wages were paid into Mr Hattingh's bank account. The fact that Ms Redfearn's pay, due on 19 April 2011, was re-directed into an account of a co-worker of Ms Redfearn in order to facilitate her air travel interstate, is not indicative of anything other than the exigencies of those travel plans.
Apart from that one wage payment that was paid into that co-worker's bank account, all Ms Redfearn's wages were contributed into Mr Hattingh's account and all monies were used from that account to pay for their joint needs. The Complainant's bank statements and his sworn statements indicate their joint needs included rent, groceries, electricity, credit card repayments and lease repayments on Ms Redfearn's bike.
Mr Hattingh and Ms Redfearn clearly shared all income and expenses; they resided together in a rented house and only Mrs Ievers contends that they had separated approximately three days prior to Ms Redfearn's death. However, that assertion is not correct; the evidence demonstrates that neither Mr Hattingh nor Ms Redfearn could support themselves, nor pay debts, without the assistance of the other and Mr Hattingh's sworn statements in this regard indicate the parties were mutually committed and supportive of each other. Finally, there is no evidence of any other financial dependent of Ms Redfearn.
The text messages between Ms Redfearn and Mr Hattingh on the morning of the day of the incident, do not support the proposition that he had once again left her. They represented Ms Redfearn issuing a 'cry for help' and a plea by Ms Redfearn for Mr Hattingh to come home and be with her; in this regard Mr Hattingh asserts:
[Mr Hattingh] stayed with [Ms Redfearn] until 8.30am that morning and went into work late. They were both upset and worried sick about their living arrangements and how they were going to raise the money to pay the rent. [Mr Hattingh] was at work upset about the matter and returned home again to be with [Ms Redfearn] who was also upset. He received a call from his work colleagues and although he wanted to stay with [Ms Redfearn] who had the day off, he had to get back to work. The messages [Ms Redfearn] sent him were a cry for him to come back home from work to be with her. If [Mr Hattingh] had ended the relationship, why did he send her a message saying he loves her and if [Ms Redfearn] had severed the relationship like [Mrs Ievers] suggests, why did she sent [sic] a message saying she loves [Mr Hattingh] and that he has only been the best.
Having regard to the evidence, the Trustee's decision to pay 100% of the death benefit to Mrs Ievers is wrong and is not fair or reasonable. Payment should have been made to Mr Hattingh as Ms Redfearn's de facto or in the alternative the whole payment or partial payment should have been made to Mr Hattingh as Ms Redfearn's only financial dependant.
18 Ms Ievers also made written submissions, a summary of which appeared in the Tribunal's reasons (at [25]) as follows:
The original decision of the Trustee, as confirmed by it on review, to pay 100% of the benefit to Mrs Ievers was correct; by paying the benefit into Ms Redfearn's estate, the opportunity exists for Mr Hattingh's evidence to be tested in a court of law pursuant to the intestacy provisions of succession law.
The relationship between Ms Redfearn and Mr Hattingh had broken down on 18 April 2011. This is evidenced by Ms Redfearn's distraught condition at work on the morning of 19 April 2011. From Mrs Ievers' experience, such distress could not have been attributable to rent issues, as these had occurred in the past without producing this distress; the level of distress manifested by Ms Redfearn was caused by the breakdown of the relationship between Ms Redfearn and Mr Hattingh on the evening of 18 April 2011.
In determining a relationship breakdown no single action is indicative. Mrs Ievers submits the following points as indicative of the breakdown in the de facto relationship between Ms Redfearn and Mr Hattingh as from 18 April 2011:
• [Name] a close friend to [Mr Hattingh] stated that 'they had had a huge argument the night before (on the 18th April) and things had just been getting worse' (ref: [name] police statement, point 10).
• [Ms Redfearn] gave instructions to her employer to change her pay from [Mr Hattingh's] account to ensure that [Mr Hattingh] had no further access to her finances (ref [name] Statutory Declaration).
• [Mr Hattingh] had taken the bank key-card and Identification [sic] documents from [Ms Redfearn] to prevent her accessing his finances showing he also made a conscious decision to end the financial relationship. (ref: Police file Statutory Declaration - [name] - has two main points: [Ms Redfearn] stayed at [name] Pharmacy on the 19th (not the 20th) because she was too scared to go home and she had no money because [Mr Hattingh] had taken her key card).
• [Mr Hattingh] applied the same tactic when breaking up with his subsequent girlfriend ([name]), taking her key-card and driver's licence to prevent her accessing his finances (Ref [name's] statement).
• [Mr Hattingh] left the airport after preventing [Ms Redfearn] from getting into his car, (confirming the breakup), driving away at speed, over the pavement (ref: [name] point 20 to 26).
• [Ms Redfearn] did not return to her home where [Mr Hattingh] was waiting, she intended to stay over at a friend's house [name] who also washed her work clothes for the next day showing no initial intention of returning to [address] (ref: [name] police statement).
• [Name] and [Ms Redfearn] were called to the house late in the evening of the 19th April. This would have presented itself to [Ms Redfearn] as an opportunity to try rekindle [sic] the failed relationship - but the failed relationship status did not change (ref: [Ms Redfearn's] texts and other witness statements).
• [Mr Hattingh] states that [Ms Redfearn] asked him to stay at home on the morning of the 20th April but most of what [Mr Hattingh] has submitted so far has been untrue and contradictory, including that he states that he stayed home until 8.30am - where [Ms Redfearn] in fact phoned [Mr Hattingh's] boss ([name]) who is a [sic] upstanding business owner, before 8.00am, already stressed, asking where [Mr Hattingh] was. - [Name] phoned [name] after this call, at 8.00am saying [Mr Hattingh] was not at work - This shows he left the house long before 8.00am, if he in fact slept there at all. (ref: [name] police statement point 11 - [Ms Redfearn's] call, followed by point 12, [name's] call at 8.00am).
• There was no indication from [Mr Hattingh] in any of his statements that he had visited the house at 10.30am on the 20th April, one and a half hours before [Ms Redfearn] "allegedly" hung herself, returning to work at 10.45am…crying. ([Name] police statement point 21 to 24) - why should he omit this fact and why should he be crying if nothing was wrong with the relationship.
• Nobody "supposedly commits suicide" if their relationship was fine, or recoverable.
• If there was nothing wrong with the relationship, [Ms Redfearn] would not text:
• Babe I love you so much please do not do this
• I love and care for you with all my heart
• Please come home
• You are my rock and I can not live without you [sic]
• [Mr Hattingh] I will kill myself if you don't come back I can't do this without you You have so many people who care about you
• I will never forgive you for leaving me
• I need you and want to marry you and have a little boy with you and make you proud
• I love you don't leave me I will not make it past sunset if you don't come home
• It is all my fault I have ruined you you are such a great person
• That's it I don't have anything to live for don't come into the garage
• The points above referring to "I love you" and "I want to marry you and have a little boy" is typical of a dejected young girl trying to win back a lost relationship - and not proof that there was nothing wrong with the relationship as [Mr Hattingh's] lawyer tries to imply.
• [Ms Redfearn] was totally focused on her relationship as shown in her final texts, why would she commit suicide (allegedly) if there was nothing wrong with it.
• Why would [name] (from whom the police apparently could not obtain a statement) say she was in town the day before (the 19th April) and met [Ms Redfearn] who told her that [Mr Hattingh] had ended the relationship.
• Why would [Ms Redfearn] tell her mother that the relationship was over.
• Why would [name] assume that the relationship was over and [Ms Redfearn] was therefore returning to her mother in [city].
• Witnesses overheard a major argument near the pharmacy on the 19th of April and it was clarified that [Mr Hattingh] had told [Ms Redfearn] "no one likes you, I wish you were dead". (Ref: [name] police statement point 15).
• Witnesses say that [Mr Hattingh] put the noose up. (How is it possible that [Mr Hattingh] can claim they had a loving relationship?) (ref: [name] police statement point 10 & [name] police statement point 5).
• Why would [Mr Hattingh] move out of the house before [Ms Redfearn] had even had [sic] died, leaving her personal effects behind. (This can be verified by police phone record in that [Ms Redfearn's step-father] phoned [name of policeman] and was transferred to the operations desk on the 21st of April requesting that the police stop the removal of [Mr Hattingh's] furniture - where police said they would do a drive-by to keep the boys honest.)
• This can also be verified by [name] who phoned and informed [Ms Redfearn's step-father] that the removal was in progress, with her boyfriend [name] being one of the boys moving the furniture.
• This can also be verified by comparing the dates that [Mr Hattingh] falsely states he moved his furniture and the collection date on [name] invoice where the only items left in the house were [Ms Redfearn's] belongings in the boxes [name] packed - on our request. [Mr Hattingh's] lawyer also tries to show that his furniture was removed after this collection date in a letter to us…saying that it was stated as such by [name] - where in fact [name] disagrees with this, and denies making such a statement. (ref: [name] letter 8 June 2012 and [name] lawyers 28 April 2014). On asking [Mr Hattingh] at the hospital on the 21st April, why his furniture was being removed, his mother responded that it was because "it ([city]) was an evil place". I don't doubt that the furniture removal may have taken a few days - but it started on the 21st April 2011, while [Ms Redfearn] lay dying in ICU, further showing that the relationship had already ended a few days before.
• The [city] ICU denied [Mr Hattingh] entrance on the 21st April as they did not believe that a de facto relationship existed at the time.
• If there was nothing wrong with the relationship, why were there 32 calls between [Mr Hattingh] and his subsequent girlfriend on the 21st April, the preceding 18 hours before she died. ([Name], the person [Ms Redfearn] saw as an immediate threat to her relationship and is it just a coincidence that [Mr Hattingh] and [name] subsequently lived together in a de facto relationship).
• Why did [name] in her statement say that [Mr Hattingh] had told her that '[Ms Redfearn] has done this because he wanted to be with her' (ref [name's] statement).
• Why did [Mr Hattingh] tell police officer [name] at the scene that she had done this because he had ended the relationship.
• [Mr Hattingh] did not participate in, and showed no interest in [Ms Redfearn's] test of life at the [city] ICU.
• [Mr Hattingh] did not stay for the signing over of her body to the police at the [city] hospital - he had in fact had already left without a care about [Ms Redfearn].
• The Coroner denied the release of the body to [Mr Hattingh] because he did not believe there was any de facto (sic) relationship at the time of her death.
• Letters of administration were issued by [city] courts to [Mrs Ievers] as [Ms Redfearn's] closest next of kin - these were neither issued to [Mr Hattingh] nor did he seek to contest the letters.
• No rent was paid by [Mr Hattingh] as from the date he moved out (21st April) further showing that the relationship had broken down and he had moved out.
• At no time after her death has [Mr Hattingh] taken on the responsibility of spouse, seeing that the relationship had already ceased, including the payment of any debts ([bank], Electricity [sic] or credit card accounts).
• [Mr Hattingh] did not attend her funeral or send any message or flowers even though he was invited to do so.
• [Mr Hattingh] himself states in his declaration that he lived in the house up until her 'accident' (which was on the 20th April), further showing he had moved out at that time.
(emphasis in original)
Mrs Ievers submits Mr Hattingh has an unreliable character and as a result is generally untruthful; therefore his claim that nothing was wrong with the relationship should be considered in that context.
In respect of financial dependency Ms Redfearn earned far less than Mr Hattingh, who was earning at least 75% of a tradesman's wage in a mining town.
Mr Hattingh has a lack of evidence and is both unreliable and inconsistent; in this context the Tribunal cannot be satisfied on the evidence currently before it that there was any financial dependency such as would prompt it to pay Mr Hattingh anything.
Mr Hattingh and Ms Redfearn did not have any joint contracts; on one hand Mr Hattingh asserts he paid for all vehicles and motor bikes, while Ms Redfearn paid for rent, food and services, but subsequently Mr Hattingh asserts that everything was shared. Mr Hattingh seems to want to keep his options open in this regard, but the fact is Ms Redfearn earned far less than Mr Hattingh.
Mr Hattingh, subsequent to Ms Redfearn's death, made no effort to pay out her credit card, overdrawn bank account or settle the electricity account.
The relevant time for establishing financial dependency is at the time of Ms Redfearn's death. Prior to her death, the following is evidence that any joint financial arrangements had been terminated:
• There were no joint contracts.
• There was no joint bank account as [Mr Hattingh] took away my daughter's bank Card [sic] - This was a unilateral decision by him.
• As a result of this, my daughter's instruction to her employer were [sic] that her salary was not paid to [Mr Hattingh's] account - this was a unilateral decision by her.
• [The Complainant] moved out of the house and also removed from the house in the days prior to her death, "his" furniture suggesting that [Ms Redfearn] did not own any of it showing a clear separation of her finances and acquisition of assets.
19 The Trustee also made submissions and all of the parties made responsive submissions.