In the decision of Tratter v Aware Super [2024] FCAFC 36 the Full Federal Court dismissed the appeal by the deceased super fund member’s mother against the super fund trustee’s apportionment of 30% to the mother and 70% to the deceased’s de facto spouse.

A non-binding nomination was made by the deceased on 12 August 2010 in favour of his mother before the deceased entered into the de facto relationship. There was a super fund merger on 30 June 2011 from which the deceased was notified that his nomination was non-binding and was given the opportunity to renew his nomination with a binding one, which he did not do.

The deceased died on 25 March 2019, at which time the deceased had lived with his spouse for at least two and a half years and were a publicly committed couple. His last non-binding nomination of 2010 was therefore made a number of years before the start of his relationship with his spouse.

AFCA upheld the decision of the super fund trustee to consider the needs of the de facto spouse and allocate 70% to the de facto spouse on the basis that the nomination in favour of the mother was not binding. The primary Judge similarly did not overturn AFCA’s decision.

The appellant was self represented before the Full Federal Court with pro bono counsel assistance. The appeal considered three grounds: (1) that the de facto spouse was not of sufficient status as a spouse to be eligible for the death benefit distribution; (2) the allocation of 30% to the mother was unreasonable and unfair given the mother’s financial dependence on her son (her son having provided a car and contributed to her council rates and to repair a heater); and (3) that the nomination should have had more bearing on the trustee’s decision.

The Full Federal Court listed the numerous considerations made by AFCA considering the factors for both sides that AFCA had considered in detail (including that the de facto had an expectation that the deceased would contribute to mortgage repayments for living together described in bank records as “rent” and that the de facto had paid off the deceased’s final credit card balance in good faith) and held that no legal error was detected in AFCA’s reasoning for any of the grounds raised for appeal and so the appeal was dismissed.

Phil Broderick
Principal
T +61 3 9611 0163  l M +61 419 512 801  
E pbroderick@sladen.com.au    

Terence Wong
Senior Associate
T +61 3 9611 0112 l M +61 0458 846 022
E twong@sladen.com.au