The Federal Court has dismissed an appeal against a decision to pay a superannuation death benefit pension to a fire fighter's de facto partner instead of a lump sum to his estate: Howard v Batistich [2019] FCA 525 (Federal Court, Robertson J, 15 April 2019). 


The deceased, Daniel Howard, died in 2014 as a result of injuries suffered in the course of his employment with Fire and Rescue NSW whilst fighting a fire at the Occidental Hotel in Cobar NSW.

The trustee of the Crown Employees (NSW Fire Brigades Firefighting Staff Death & Disability) Superannuation Fund determined that the respondent, Ms Batistich, was a "de facto partner" of the deceased at the date of his death under the Superannuation Act 1916 (NSW) and s 21C of the Interpretation Act 1987 (NSW). Accordingly, the trustee determined that Ms Batistich was entitled to a fortnightly pension of $1,180. If there was no spouse (including a de facto), a lump sum death benefit of $350,000 would have been payable to the deceased estate.

The deceased's parents, as the administrators of his estate, complained to the Superannuation Complaints Tribunal (SCT) that Ms Batistich did not meet the definition of de facto partner. However, the SCT determined that the trustee's decision was fair and reasonable in the circumstances. The SCT considered that text messages clearly establish that the deceased and Ms Batistich were in a loving, committed relationship and shared responsibility for the day-to-day household responsibilities, which included shopping, cooking and the care of her son.

The deceased's parents appealed this determination arguing that the SCT erred in law by focusing on whether the Ms Batistich qualified as a spouse rather than whether the decision was fair and reasonable under s 37(6) of the Superannuation (Resolution of Complaints) Act 1993 (SROC Act). The applicants submitted that a proper exercise of the SCT's power would necessarily have involved some consideration of why aspects of their case that Ms Batistich was not in a de facto relationship were not to be accepted or discounted in favour of other evidence. The applicants said it was not clear why the SCT gave primacy to one view of the material before it and not the other.


In dismissing the appeal, the Court said it was not satisfied that the SCT had misunderstood its task or failed to take into account all the circumstances of the relationship. The Court rejected the applicants' argument that the SCT had not had regard to the material submitted by the applicants. While the Court agreed that the SCT's reasons were not "fulsome", it ruled that it complied with s 40 of the SROC Act by setting out its findings on material questions of fact. "That a matter is not mentioned in a statement of reasons does not mean that it was not considered, although that may be inferred", the Court said.

The Court noted that the SCT had found that Ms Batistich and the deceased lived together at the time of the deceased's death. It then expressly considered:

  • whether they were in a loving, committed relationship; 
  • whether they shared responsibility for the day-to-day household responsibilities; 
  • whether they shared responsibility for the care of Ms Batistich's son; 
  • whether they both contributed to the day-to-day expenses of running the household as well as maintaining their own financial responsibilities in respect of the properties that they each owned; 
  • whether there was an intention between them for the relationship to continue in the manner of a committed future together; and 
  • whether there was evidence of the public acknowledgement of the relationship. 

The Court said the SCT's findings addressed the matters in s 21C of the Interpretation Act going to the issue of "relationship as a couple" and by necessary implication rejected the applicants' contentions, including factual contentions, to the contrary. The contentions included Ms Batistich's status with Centrelink and what the cleaner and gardener said. The Court ruled that the SCT plainly made a factual finding that newspaper articles provided evidence of the public acknowledgement of the relationship and in doing so rejected the applicants' contention to the contrary, including that the articles, or some of them, were wrong.