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[2003] SAWCT 11
respondent. Notice of dispute dismissed; applicant has no entitlement pursuant to s 44 of the Workers Rehabilitation and Compensation Act 1986 (paras 48-49).
The Tribunal found the applicant and deceased began true cohabitation around September/October 1999 and lived together continuously for about eight months until the deceased's death on 31 May 2000. That period did not meet the five year cohabitation requirement in the Act nor did it constitute 'a substantial part' of five years to attract the Corporation's discretion. Accordingly the applicant was not a 'spouse' for s 44 lump sum purposes and her dispute was dismissed.
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Samantha Louise Koehne sought a lump sum death benefit under s 44(1)(b)(i) of the Workers Rehabilitation and Compensation Act 1986, claiming she was the de facto spouse of Benjamin Kurt Mackiewicz, who died in a plane crash on 31 May 2000 (paras 1–3). WorkCover determined she was not a spouse under the Act and declined to exercise its discretion to treat her as a spouse under the extended definition (para 4). The Tribunal held a judicial determination and heard contested evidence on 16 September 2002 and 13 January 2003; judgment was delivered on 13 February 2003 (heading and para 1; hearing dates).
4 cited instruments linked from this judgment.
The factual contest concerned whether and when the applicant and the deceased were ‘cohabiting as the de facto husband and wife’ so as to meet the statutory definition in s 3 (the Interpretation section) and thereby qualify for the s 44 lump sum (paras 6–8). The Tribunal accepted the applicant’s frank evidence about the relationship and relied also on statements from the deceased’s parents (paras 9–11, 21). Key events were: meeting in May 1999; an immediate sexual relationship and frequent overnight stays until October 1999 (paras 13–16); the applicant relinquishing her Whyalla flat and briefly moving into the deceased's Adelaide share house in October 1999 prior to an overseas trip, leaving personal effects with him (paras 18–20); continued residence after her return and a joint lease of a Keswick flat on 26 January 2000 until the death (paras 20–21); and an engagement proposal on 27 May 2000 (paras 22–23).
The Tribunal found cohabitation in the statutory sense commenced about September or early October 1999 and continued until the deceased's death, amounting to approximately eight months continuous residence preceding the death (para 40). Because this period was far short of the five year threshold and was held not to constitute 'a substantial part' of five years, the applicant failed to meet either the primary or discretionary basis for de facto spouse status; the notice of dispute was dismissed (paras 41–43, 49).
Two statutory provisions framed the decision: s 44(3), which conditions entitlement to the lump sum upon cohabitation or, alternatively, the Corporation’s opinion that it is fair the spouse receive the lump sum; and the Interpretation s 3 definition of 'spouse', which extends to de facto partners only if they meet one of three subparagraphs, (i) continuous cohabitation for the preceding five years, (ii) aggregated five years within six, or (iii) cohabiting for a 'substantial part' of those periods and the Corporation considers it fair and reasonable (paras 6–7).
The Tribunal's reasoning proceeded in two linked steps. First, factual: it assessed when the parties' relationship gained the essential characteristics of cohabitation in the sense of living together as husband and wife (paras 36–41). The Tribunal recognised that not every close relationship or episodic shared accommodation equates with statutory 'cohabitation' and that early stages of a relationship may be 'exploratory' rather than evidence of a settled cohabiting arrangement (paras 37–39). Although the couple had early sexual relations and frequent overnight stays from May–October 1999, the Tribunal concluded the true commencement of the statutory cohabiting relationship was about September/early October 1999, sustained through to the death, giving a continuous period of about eight months (para 40).
Second, normative/statutory: the Tribunal interpreted 'a substantial part' of the five year qualifying period to mean a significant portion, not any fractional part. The court observed Parliament's use of a five year cohabitation period in other South Australian remedial statutes and reasoned that reading 'a substantial part' too narrowly (so as to encompass small fractions) would undermine the integrity of the statutory definition (paras 44–46). Applying these principles, eight (or even the applicant’s suggested twelve) months could not be regarded as a substantial part of five years, so neither the primary nor discretionary heads were satisfied (paras 41, 43–46).
Consequently, because the applicant failed to meet the statutory threshold she could not be a spouse for s 44 purposes; the Tribunal did not need to resolve other questions (including the Tribunal’s jurisdiction to review the Corporation's discretionary exercise) and dismissed the dispute (paras 47–49).
Before this decision, the Tribunal relied on the Full Supreme Court’s analysis in Bilston v WorkCover Corporation (1996) 66 SASR 193, and on Re Fagan (1980) 23 SASR 454 and Marriage of Pavey as authorities discussing the meaning of cohabitation and indicia of marital-like relationships (paras 26–34). Bilston emphasised the need to be realistic about cohabitation, that it is an 'elusive notion' and that allowance must be made for varying circumstances; it also recognised cohabitation as a relationship as much as a set of facts (paras 30–31). Marriage of Pavey provided a summary of constituent elements of marriage useful as indicia when assessing de facto cohabitation (para 34).
This Tribunal decision applies and synthesises those authorities in the specific context of s 3 and s 44 of the Workers Rehabilitation and Compensation Act 1986. It reinforces that cohabitation requires a settled conjugal relationship in the statutory sense, not merely periodic companionship or stays contingent on work arrangements (paras 37–41). Importantly, it clarifies the threshold meaning of 'a substantial part' of the five year qualifying period: the Tribunal read that phrase as requiring a significant proportion of five years; short periods such as eight or twelve months will not ordinarily engender the discretion to treat someone as a spouse (paras 42–46). The decision thus tightens expectations for claimants relying upon the discretionary head in s 3(a)(iii).
Paragraph 40 (finding of cohabitation): "I find that from about September or early October 1999... the applicant resided continuously with the deceased worker for a period of eight months preceding the date of death." Plain English: The Tribunal concluded that the couple truly began living together as a couple around Sept/Oct 1999 and kept living together until he died, giving about eight months together in total.
Paragraph 41: "Such a period falls far short of the first mentioned qualifying period applicable to the applicant, namely five years..." Plain English: Eight months is nowhere near the five years the Act requires for automatic de facto spouse status.
Paragraph 43: "Neither period can be regarded as a substantial part of five years..." Plain English: Even if the relationship had lasted a year, that still wouldn't be a big enough chunk of a five-year period to trigger the Corporation's special discretion.
Paragraph 45: "The purpose and integrity of the definition of 'spouse' would be undermined if the words 'a substantial part' was interpreted to incorporate 'any part of'." Plain English: The Tribunal rejected the idea that any short piece of time could count as a 'substantial part', because that would make the five-year rule meaningless.
Paragraph 34 (indicia of marriage): lists qualities (shared roof, sexual intercourse, mutual society, public recognition, nurture/support). Plain English: These are the factors you look at to decide whether two people are living together like husband and wife, but you do not have to tick every box.
This decision is binding on the Tribunal and instructive for similar fact patterns where a claimant asserts de facto spouse status for workers compensation death benefits but the relationship duration is short. The critical triggers are:
A de facto relationship where the parties had intermittent co-residence and shared activities before settling into continuous cohabitation; the Tribunal will examine whether earlier periods were exploratory or constituted settled cohabitation (paras 37–40).
Cases where the continuous cohabitation period preceding death falls substantially short of five years (for example months rather than years). The Tribunal will treat short durations (here eight months) as insufficient for either the primary statutory test or the discretionary 'substantial part' test (paras 40–46).
Situations where claimants seek to rely on the Corporation's discretion under s 3(a)(iii) to treat them as spouses; the Tribunal requires that the cohabitation be a significant portion of the five year statutory benchmark for the discretion to be engaged (paras 42–46).
Practitioners should therefore not expect the discretion to be engaged merely because parties had a serious relationship, engagement plans, parental/family recognition, or had occasional stays prior to genuine cohabitation. Those facts are relevant but insufficient where duration is limited.
The judgment contains no discussion of subsequent appellate treatment or later case law beyond the authorities it cites (Bilston, Re Fagan, Marriage of Pavey) (paras 26–34). Accordingly the Tribunal’s rulings here are a clear exposition of the Tribunal’s approach at the time. If one needs to know whether higher courts have adopted, corrected, or distinguished this approach after 2003, that requires targeted research in subsequent reported decisions and appeals; the present text does not supply such materials.
The decision does not address the separate issue of the Tribunal's jurisdiction to review the Corporation's discretionary exercise in s 3(a)(iii) because the applicant failed the primary statutory tests (para 48). Therefore the question of standard and scope of judicial review of the Corporation's 'fair and reasonable' exercise remains unresolved in this decision.
The Tribunal treated the Parliament's use of 'a substantial part' as requiring a significant proportion of five years, but the decision does not quantify what proportion would suffice. What fraction or circumstances would satisfy 'substantial part'? The judgment implies a requirement substantially greater than one year, but leaves indeterminate the exact measure or the relevant factors that might justify a 'substantial part' finding in close cases (paras 42–46).
The judgment recognises the importance of various indicia of marital-like relationships (para 34) but emphasises longevity. It remains an open question how much weight courts or tribunals will give to non-duration indicia (public recognition, financial interdependence, shared children, mutual commitments) in marginal duration cases where substantial qualitative indicators exist but the temporal threshold is short.
The Tribunal invoked statutory context and comparators in other South Australian Acts to support its interpretation (para 46). The extent to which that comparative-statutory reasoning will control in other jurisdictions or under different remedial statutes may be arguable, particularly where other statutes or policy objectives point to a more flexible approach.
Practical implications for practitioners: secure and present evidence as to the commencement date of settled cohabitation, emphasise continuous residence and shared household arrangements, and if duration is short, build a strong evidentiary case on qualitative indicia and argue why those indicia should persuade the Corporation (or a reviewing Tribunal) that the 'substantial part' threshold is met or that a discretionary favourable exercise is warranted. This decision demonstrates that without a significant duration, such qualitative evidence may be insufficient to surmount the statutory temporal threshold (paras 37–46).
1 This is the judicial determination of a dispute between Samantha Louise Koehne ("the applicant") and WorkCover Corporation ("the respondent") concerning the respondent's rejection of the applicant's claim for compensation pursuant to s 44 of the Workers Rehabilitation and Compensation Act 1986 ("the Act") in relation to the death of the late Benjamin Kurt Mackiewicz ("the deceased worker").
2 The deceased worker was killed in a plane crash in compensable circumstances on 31 May 2000 when he was employed as a pilot with Whyalla Airlines Pty Ltd.
3 The applicant does not assert that she had any dependency upon the deceased worker such that she would be entitled to weekly payments pursuant to s 44(1)(b)(ii) of the Act, but she seeks the lump sum compensation payable to a spouse upon death pursuant to s 44(1)(b)(i) of the Act.
4 By its determination dated 5 January 2001 the respondent concluded that the applicant was not a spouse of the deceased worker as at 31 May 2000 for the purposes of s 44(1)(b) of the Act, and as defined by s 3 of the Act. Furthermore, the respondent declined to exercise its discretion to treat her as the spouse notwithstanding her failure to meet the statutory period of five years cohabitation, such discretion being contained in s 3 of the Act.
* Whether the applicant meets the statutory definition of "spouse".
* Whether the Tribunal has the jurisdiction to review the respondent's discretion to not regard her as a spouse.
* Whether, if the Tribunal possesses such jurisdiction, it should, in the circumstances, interfere with the respondent's determination.
6 The spousal entitlement to a lump sum payment of compensation provided for in s 44(1)(b) is subject to s 44(3) which provides as follows:-
"A spouse is not entitled to a lump sum under subsection(1)(b)(i) unless-
(a) the spouse was cohabiting with the worker on the date of the worker's death; or
(b) although the worker was not cohabiting with the worker on the date of the worker's death it is, in the opinion of the Corporation, fair that the spouse should receive a lump sum under that provision."
"`spouse' in relation to a worker includes a person who is cohabiting with the worker as the de facto husband or wife of the worker if-
(a) (i) the person has been so cohabiting with the worker continuously for the preceding period of 5 years; or
(ii) the person has during the preceding period of 6 years cohabitated with the worker for periods aggregating not less than 5 years; or
(iii) although neither subparagraph (i) or (ii) applies the person has been cohabiting with the worker for a substantial part of a period referred to in either of those subparagraphs and the Corporation considers that it is fair and reasonable that the person be regarded as the spouse of the worker for the purposes of this Act; or
(b) a child of whom the worker and the person are the parents has been born( whether or not the child is still living)."
8 There is no dispute that the applicant and the deceased worker were not legally married at any relevant time. Accordingly any entitlement to spousal compensation is dependent upon whether the applicant was cohabiting with the deceased worker as his de facto wife as at the date of the deceased worker's death, and had done so for one of the qualifying periods prescribed by or in the discretionary circumstances contemplated by s 3 of the Act.
9 Evidence as to their relationship was provided by the applicant's written statement, her oral evidence, and the respective written statements of the deceased worker's parents Kurt and Nanette Mackiewicz, Exhibits A2 and A3 respectively.
10 There was no dispute on the applicant's evidence, which she gave in a straightforward and helpful manner. Rather, the evidentiary contest between the parties was as to the inferences about the relationship which could reasonably and properly be drawn from the available evidence.
11 The applicant was born on 16 February 1973 and is now 29 years of age. She is a school teacher by occupation. She was 27 when the deceased worker died.
12 The deceased worker was born on 15 June 1978 and died a few weeks before his 22nd birthday.
13 The applicant and the deceased worker met in May 1999 when the applicant was residing in Whyalla where she was employed as a teacher. She was sharing a flat with a female friend. At that time the deceased worker's employment as a pilot involved flying regularly between Whyalla and Adelaide so that, although at that stage he shared a house in Adelaide with some male friends, he spent work and leisure time at both locations.
14 From the time that the applicant and the deceased worker met socially they became regular companions and within a week or so they commenced a sexual relationship.
15 Between May 1999 and October 1999 the deceased worker stayed three to four nights per week with the applicant in her shared flat in Whyalla. The other nights his work required him to be away from Whyalla. Any weekends when he was not required to work they spent together, and on some weekends when he was required to work the applicant accompanied him.
16 During this time the applicant shared the cost of the rent and household expenses with her female friend, but the deceased worker gave the applicant cash on occasions to contribute to the telephone and electricity bills, and also contributed equally to a pooled amount maintained for food. On occasions purchases were made for the deceased worker on the applicant's visa card and on such occasions he reimbursed her.
17 From May 1999 to October 1999 the deceased worker and the applicant conducted themselves consistent with an ongoing relationship, spending time in each other's company and making plans for the future. The deceased worker was keen to further his career as a pilot by obtaining employment with another airline, and the applicant applied for a transfer to Adelaide "so that I could live with Ben" (tr 6).
18 However the applicant had a pre-existing plan to travel overseas with a friend between 14 October 1999 and 23 December 1999 and to this end had arranged country incentive service leave for the last term of the 1999 school year so that she could travel overseas.
19 She obtained a transfer to Adelaide for the 2000 school year and in October 1999, before leaving for overseas, relinquished her shared flat in Whyalla, stored her household goods, and left her personal effects and clothing with the deceased worker at his shared house in Adelaide. She lived there with the deceased worker for the two weeks between leaving Whyalla and commencing her overseas trip.
20 When she returned from overseas they continued to live together at the deceased worker's share house and on 26 January 2000 they moved into a flat in Keswick which they jointly leased. They lived together at that address until the deceased worker died.
21 The applicant's evidence was that she and the deceased worker formed an intention early in their relationship that they wanted to be married. This was corroborated by the respective statements of Mr and Mrs Mackiewicz who stated that their son had informed them of that desire. Mr and Mrs Mackiewicz live at Ballarat, Victoria, where the applicant and the deceased worker visited them on a number of occasions. Mr and Mrs Mackiewicz had spoken on the phone to the applicant and the deceased worker on a number of occasions from their home in Ballarat. They both stated that they had formed the impression that the applicant and the deceased worker had a strong relationship.
22 Shortly before the deceased worker's tragic death the applicant and the deceased worker had selected and put on lay-by an engagement ring, and on 27 May 2000, just days before the plane crash, the deceased worker had asked her to marry him. They had planned to announce their engagement on the deceased worker's 22nd birthday in Adelaide, and had foreshadowed that intention to his parents who were intending to come to Adelaide for the occasion. They had planned to marry in December 2000.
23 The headstone erected by Mr and Mrs Mackiewicz on the deceased worker's grave bears an inscription "partner of Sam", and she has continued to remain close to the family and is the godmother of one of the deceased worker's nieces.
24 Mr Stanley, counsel for the applicant, submitted that the facts establish that the applicant and the deceased worker were cohabiting as de facto husband and wife since May 1999, a period of 12 months prior to the deceased worker's death, and that such a period is a substantial part of five years because it is 1/5 of that total.
25 Mr Kourakis QC, counsel for the respondent, submitted that the period of cohabitation was much shorter, being limited to the period between January 2000 when they leased a flat together, and the date of death. He submitted that the period from May 1999 to October 1999 amounted to no more than the deceased worker staying over with the applicant without a commitment to share husband like and wife like services. If that be so, then he submitted that any cohabitation could not then have commenced until at least after the applicant returned from overseas. Thus in his submission the period of cohabitation was for only about five months. Further, he submitted that, even if the cohabitation was for a period of 12 months, the applicant fell well short of the first hurdle in establishing an entitlement to a lump sum, 12 months not being a substantial part of five years.
26 In Bilston v WorkCover Corporation (1996) 66 SASR 193 the Full Supreme Court was required to deal with a different problem concerning the application of s 44 of the Act. The appellant in those proceedings was legally married to the deceased worker but as at the date of the deceased worker's death they were living apart and had done so for about three years with the appellant residing in Sydney NSW, and the deceased worker residing until his death in Clare, South Australia.
27 The issue there was whether the appellant was cohabiting with the deceased worker as at the date of death, notwithstanding their residential arrangements.
28 It was in that context that the concept of "cohabitation" was the subject of relevant comment by the Court. In the course of his judgment, Doyle CJ referred to the decision of Jacobs J in Re Fagan (1980) 23 SASR 454 at 464, where His Honour quoted with approval the following remarks of Lord Goddard CJ in Wheatley v Wheatley (1950) 1 KB 39 at 43:-
" .... The cohabitation of two people as husband and wife means that they are living together as husband and wife, the wife rendering wifely services to her husband; the husband rendering husband-like services to his wife. They must live together not merely as two people living in one house, but as husband and wife ..."
29 Doyle CJ also referred to another passage in re Fagan in which Jacobs J said (at 464):-
"... It does not necessarily imply that they always live together under the same roof, and there may be states of cohabitation where they see as much of each other as they can, and yet are not separated because there has not been any real suspension of their ordinary conjugal relation. A man may be cohabiting with his wife even if he is away on a visit or on business because the conjugal relationship is not determined in any share or form...."
30 In determining whether the relevant state of "cohabitation" exists, Doyle CJ remarked that, as a matter of common sense,
"proper allowance must be made for the varying circumstances affecting the lives of spouses."
Furthermore, he emphasised the need to be realistic and to recognise the
"... somewhat elusive nature of the notion of living together as husband and wife. This is something the meaning of which could change with changes in social conditions and attitudes, and with age and no doubt for other reasons.'"
31 Finally of relevance to the situation here, His Honour said that:-
"... while the notion of cohabitation is that of living together as husband and wife, cohabitation is as much a relationship as a set of facts...".
32 It was by reference to the analysis of cohabitation set out in Bilston's Case upon which Mr Stanley relied to demonstrate that the applicant and the deceased worker were cohabiting for 12 months.
33 The concept of cohabitation is used in the Act as a means of identifying that necessary quality in a relationship which would authorise a payment to an applicant for the loss of his or her partner. The cohabitation required to attract the operation of s 44 may exist between an applicant and worker who are legally married, or it may operate in relation to an applicant who is "cohabiting with the worker as the de facto husband or wife of the worker".
34 Although the exact nature of the relationship of cohabitation cannot be reduced to a set of essential factors, the relationship will incorporate some or all of the constituent elements which apply to the marital relationship and which were summarised in the Marriage of Pavey (1976) 10 ALR 259 at 263, including dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the marriage by both spouses in public and private, and the nurture and support of the children of the marriage.
35 In the case of an applicant who is cohabiting with a worker as his or her de facto spouse the Act imposes a qualifying period for the continuation of such a relationship before s 44 can be applied. The purpose of the qualifying period is to establish that the relationship has the qualities necessary to accord it the same status under the Act as that given to a legal marriage.
36 A qualifying period must have a commencement and an end point. Unlike marriage where the commencement of cohabitation is provided by the formal act of marriage, the commencement of a de facto relationship may be harder to identify.
37 Mr Stanley's submission that the applicant and the deceased worker cohabitated for 12 months depends upon an inference being drawn that within about of week of meeting each other they commenced cohabititation in the sense understood above, to the extent that their employment responsibilities and other arrangements permitted. In my view that proposition is based upon a retrospective view informed by what their relationship became rather than an assessment of their mutual intention in May 1999.
38 Although they spent their leisure hours together as a couple, stayed in the same dwelling when their work commitments allowed, and had a sexual relationship from a very early stage of their relationship, common sense and human experience would suggest that this was an exploratory time in their relationship which preceded a decision to commence a cohabitating relationship.
39 Just when that decision occurred is not entirely clear, but I tend to the view that it preceded the applicant's departure from Whyalla in October 1999. At that point, and prior to taking her prearranged overseas trip, she moved in with the worker at his share house in Adelaide having relinquished her flat in Whyalla and obtained a transfer to Adelaide for the school year 2000 for the specific purpose of continuing her relationship with the deceased worker.
40 I find that from about September or early October 1999 the applicant and the worker were cohabitating in the sense intended by the Act. That state of affairs continued, notwithstanding the applicant's overseas trip, until the deceased worker's death. I appreciate that it was not until January 2000 that they leased a unit together. Undoubtedly this was an important milestone in their relationship, however I am satisfied that from the period just before the applicant left Whyalla their relationship contained the essential qualities of cohabitation. Accordingly, I find that the applicant resided continuously with the deceased worker for a period of eight months preceding the date of death.
41 Such a period falls far short of the first mentioned qualifying period applicable to the applicant, namely five years preceding the date of death (s 4(a)(i)).
42 However, the issue remains whether there was cohabitation for a substantial part of that period which is the trigger for the exercise of a discretion by the Corporation to regard an applicant as a spouse if "it is fair and reasonable that the person be regarded as the spouse of the worker for the purposes of the Act".
43 Whether the period of cohabitation was 12 months, as submitted by Mr Stanley, or eight months as I have found, neither period can be regarded as a substantial part of five years so as to trigger the operation of the discretion referred to above.
44 In introducing a discretionary qualifying period determined by reference to "a substantial part of", it is apparent that Parliament intended to guard against any unfairness which might result from the arbitrary application of the qualifying period contained in (a)(i) and (ii) of the definition of "spouse". That being so, it is likely that Parliament had in mind that the actual period of continuous cohabitation required for a person to be defined as a spouse under the Act should constitute a significant portion of the relevant statutory period.
45 Given the "elusive nature of the notion of living together as husband and wife"(Bilston's Case per Doyle CJ, supra), the longevity of a de facto relationship is fundamental to the attribution of rights and obligations similar or the same as those applying to the parties to a legal marriage. The purpose and integrity of the definition of "spouse" would be undermined if the words "a substantial part" was interpreted to incorporate "any part of".
46 In addition, it is to be noted that there are a number of South Australian Acts of Parliament, also of a remedial kind, which contain a definition of "spouse" or "putative spouse"; I refer in particular to the Family Relationships Act 1975, the Wrongs Act 1936 as amended, the Guardianship and Administration Act 1993 and the Mental Health Act 1993. Each of those Acts adopts a five year period of cohabitation as the, or a means of, defining a de facto relationship. In that context it is unlikely that the inclusion of the expression "a substantial part of" in reference to the five year qualifying period in this Act could be used to produce a result out of step with such apparent consistency.
47 The applicant has not met the extended definition of spouse contained in s 4(a)(iii).
48 That being so, it is unnecessary for me to determine the remaining issues.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.
Koehne
Workcover/Nrma
(1996) 66 SASR 193
(1980) 23 SASR 454
(1976) 10 ALR 259
Notice of dispute dismissed; applicant has no entitlement pursuant to s 44 of the Workers Rehabilitation and Compensation Act 1986 (paras 48-49).