The existing relationship issue
52 The existing relationship issue required attention to the definition in r 1.2.1 of "marital or couple relationship". In order for Mr Rushton to be eligible for a spouse pension under the second alternative in that definition, the deceased and Mr Rushton, who were legally married to each other, had to be, at the time of her death, in a relationship under which they had been living with each other "as husband and wife… on a permanent and bona fide domestic basis at that time, having regard to any evidence relevant in that respect".
53 The amendments to s 2CA of the Acts Interpretation Act had no relevance to the construction of the rules as they applied to the relationship between Mr Rushton and the deceased. That is because they were legally married at all times up to her death. Therefore, they were always "spouses" as defined in s 2CA and in the natural and ordinary English meaning of "spouse", but that was not determinative of whether they were spouses within the definition of "spouse" in r 1.2.1.
54 At common law, a conclusion that a husband and wife are "living together" or living with each other involves a consideration of whether consortium continues between them: Rex v Creamer [1919] 1 KB 564 at 569. There, Darling, Avory, Lush, Shearman and Sankey JJ said:
A husband and wife are living together, not only when they are residing together in the same house, but also when they are living in different places, even if they are separated by the high seas, provided the consortium has not been determined. In this case it cannot be said that at the time the wife took the money the consortium had been determined, because the wife had not at that time committed adultery, and therefore it is little to the purpose to point to the fact that the wife was living at Folkestone and the husband was in France on service with the Army. In the legal sense they were still living together.
(emphasis added)
55 However, society and social norms have changed in the century since that decision: see the discussion of who could be a member of a tenant's family in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 at 39B-40F per Lord Slynn of Hadley, 46A-47A per Lord Nicholls of Birkenhead, 47G-48A per Lord Clyde.
56 In Roy v Sturgeon (1986) 11 NSWLR 454 at 458F-G, Powell J said that the determination of whether persons are living together as husband and wife on a bona fide domestic basis cannot be determined by a priori rules to establish whether a particular element is or is not present. He said, correctly, that as human personalities and needs vary markedly, so also various aspects of their relationships will vary from case to case in which a decision-maker is required to make a finding as to whether two persons were living together as husband and wife on a bona fide domestic basis.
57 A completely satisfactory definition of the concept intended to be conveyed by expressions such as "living with each other", "living with" or "living together" in a domestic relationship has proved elusive, as shown by how the House of Lords grappled with statutory attempts in Gubay v Kingston (Inspector of Taxes) [1984] 1 WLR 163. A platonic relationship or a caring friendship ordinarily will not be within the concept of such a relationship. In Fitzpatrick [2001] 1 AC at 40F-G, Lord Slynn, in discussing whether the parties to a same sex relationship could be a "family" within the meaning of a statute, said that a transient, superficial relationship, even if intimate, would not suffice and nor would mere cohabitation of friends as a matter of convenience: see too at 47G-48A per Lord Clyde.
58 In Main v Main (1949) 78 CLR 636 at 642-643, Latham CJ, Rich and Dixon JJ explored considerations that went to whether there was at a specified date an existing matrimonial relationship after the couple had lived separately and apart for a lengthy period (there, over 5 years). The husband became paralysed and was a complete invalid, who had to live in a facility to care for him. The wife paid a contribution from her wages for his maintenance. Their Honours said that absences between spouses, even for long periods, did not mean that the mutual recognition of the marital relationship would cease to exist. However, because of the permanence of the husband's physical and mental incapacity to live his former life, their Honours said at 643:
Both must have known that the resumption of a common home, of a marital association, was out of the question. There was no prospect of its ever being possible. The contribution by the wife may mean that she recognized a legal or moral obligation. It does not mean that she recognized the subsistence of a conjugal relation and treated the suspension of a common life as only temporary.
(emphasis added)
59 In any event, the rules are not concerned exclusively with whether married or other couples are only "living with each other" or "living together", but with the wider concept of a "marital or couple relationship".
60 I am of opinion that the expression "living with each other" in the definition of "marital or couple relationship" in the rules comprehends the relevant couple having a domestic relationship in which each party enjoys, mutually, the "society" of the other: cf Toohey v Hollier (1995) 92 CLR 618 at 627-629 per Dixon CJ, McTiernan and Kitto JJ. This requires the decision-maker under the rules (the trustee and the Authority in dealing with a complaint) to consider the nature and incidents of the parties' relationship, including their expressed perceptions of it, by having regard to "any evidence relevant in that respect", including, when relevant, the factors set out in the second alternative in the definition of marital or couple relationship. For example, if one party to a relationship does not regard or treat it as subsisting, such as where a couple live in the same accommodation but agree, or one of them insists, that each or the one will conduct their lives separately and independently of the other, ordinarily it would be difficult to characterise that as them "living with each other as husband and wife, spouses or partners, on a permanent and bona fide domestic basis". Likewise where one party stays or places himself or herself in the position of "living with" the other because of a sense of moral or legal obligation but without a sense of mutual commitment to the other, it is unlikely that their relationship could be characterised as falling within the definition of a marital or couple relationship: Main 78 CLR at 643.
61 In arriving at a finding as to whether Mr Rushton was in a marital or couple relationship with the deceased at the time of her death, the Authority had to have regard and give fundamental weight in its decision-making to relevant evidence, including any evidence bearing on whether Mr Rushton was wholly or substantially dependent on his wife, they were legally married (which they were), there was a child of both of them within the meaning of the Family Law Act (which there was, being the couple's three minor children) and any other matters that the trustee considered relevant: Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183 [103]-[112] per Rares J.
62 Ordinarily, a formal act of separation will be conclusive that the relationship of "living together" has come to an end even if the legal status of marriage, or the ties of children, shared assets or liabilities might continue to exist. But mere geographical separation, including habitation in different households, is not, of itself, sufficient to bring about the factual consequence that two people are not any longer "living together" within the meaning of a marital or couple relationship.
63 The trustee argued that the expression "living with each other" in the chapeau to the definition of marital or couple relationship required that the parties must in fact live in the same household. I reject that argument. The chapeau introduces a concept that is fleshed out in the first and second alternatives of the definition of "marital or couple relationship". Indeed, the same words are used, verbatim, in the second limb of the definition of "spouse".
64 For the purpose of determining whether persons were in the second alternative of the definition of a marital or couple relationship, the decision-maker has to have "regard to any evidence relevant in that respect" including whether the person in Mr Rushton's position was wholly or partly dependent on his late wife. However, that consideration was not determinative in the trustee (or the Authority) forming the opinion about the existence of a marital or couple relationship, unlike its significance in the second limb of the definition of "spouse", which would apply to govern the position if Mr Rushton could not establish that he was in an existing marital or couple relationship.
65 The trustee argued in its written submissions that, on the face of its reasons, the Authority did not appear to have considered the second alternative in the definition of marital or couple relationship. I reject that contention. It is pellucid that the Authority did consider this under the heading in its reasons "The complainant does not satisfy the first limb of the definition of spouse".
66 The whole definition of "marital or couple relationship" was relevant to the first limb of the definition of "spouse". This required consideration of whether Mr Rushton and the deceased were in a marital or couple relationship of either kind. The Authority dealt with both. At the outset, it recognised that they had separated from 28 February 2014 and thus could not fall into the first alternative in the definition of marital or couple relationship. That is why in its consideration under the above heading, it looked at, and made findings about, the position after the deceased, the children and Mr Rushton had moved to Canberra. In doing so, it had regard to each of the relevant factors in the second alternative of the definition of marital or couple relationship, and found:
When the complainant returned to Canberra he lived with his parents and used a post box as his mail address. He did not live with the deceased and the children who had a separate residence both in Canberra and earlier in Queensland. There is no evidence of shared financial arrangements nor any evidence of a mutual commitment to a shared life together between the deceased and the complainant. It was accepted publicly, by family, friends and the palliative care staff supporting the deceased, the parties were separated before and at the date of the deceased's death.
It is not sufficient that the deceased and the complainant remained legally married and he provided care for her to establish the relationship was a marital or couple relationship at the date of the deceased's death. The relationship, as a whole, needs to be considered. I am satisfied the complainant and the deceased, while legally married, were not living in a marital or couple relationship at the date of the deceased's death. Accordingly, I am satisfied the complainant does not satisfy the first limb of the definition of spouse under the fund's governing rules.
(emphasis added)
67 In my opinion, the second alternative required the Authority, standing in the shoes of the trustee, to form an opinion about whether the deceased and Mr Rushton were living with each other as husband and wife on a permanent, bona fide domestic basis at the time of her death having regard to the mandatory relevant considerations set out, including that they were legally married to each other, had three children together, had no shared assets or liabilities, and whether Mr Rushton was wholly or substantially dependent on his late wife. That is what the Authority did in the passage I have just quoted.
68 The question of whether two persons are "living together" as husband and wife on a permanent and bona fide domestic basis at the time of the death of a member of the scheme is one of fact, not law. As the cases to which I have referred show, how a human relationship can be characterised by a decision-maker has no one or unique answer. That characterisation will depend on an evaluation of all of the material before the decision-maker as to whether the circumstances of the two individuals at a particular point in time meets the criterion in the instrument under which the decision must be made, here, that of a marital or couple relationship as defined in r 1.2.1.
69 While Mr Rushton appears to have acted in a supportive and considerate manner in the last months of his late wife's life, and that conduct can well be seen as a recognition of a moral obligation, it does not mean that the deceased recognised that their relationship was again one of them living with each other as husband and wife: Main 78 CLR at 643. The Authority referred to evidence before it, which was not in the appeal papers, in finding that the deceased agreed to Mr Rushton caring for her in that period to enable their children to build a relationship with him because she understood that, after her death, he would be given custody of them. It was open to the Authority to find that Mr Rushton's care for his late wife and his receipt of a carer's allowance, by itself, did not require it to form the opinion that they were in a marital or couple relationship. Indeed, its finding was that the deceased's motivation when she moved to Canberra was not to resume their married life together after their formal separation on 28 February 2014, but to provide for the future welfare of their children.
70 I am not satisfied that Mr Rushton has established any basis to conclude that the Authority erred in arriving at its evaluative finding that he was not in a marital or couple relationship with the deceased at the time of her death. The Authority had the statutory function of finding the facts and drawing its conclusions as to the fairness and reasonableness of the second trustee decision in its operation in relation to Mr Rushton and the children. It did not make any jurisdictional error or act otherwise than in accordance with law in arriving at that conclusion.