When Does A Relationship End? A Review Of Nguyen v Australian Financial Complaints Authority

In Lavan’s most recent Family law update, Challenges For Family Relationships In An Ageing Society: Lessons From Fairbairn V Radecki , Partner Jorja Brady and Senior Associate Rachel Harkness wrote about the challenges that can arise in determining when a relationship has ended and how this can impact a family law property settlement claim.  

The recent Full Court of the Federal Court of Australia decision of Nguyen v Australian Financial Complaints Authority [1] brings these considerations into sharp focus, albeit in tragic circumstances.

This case further highlights the interaction of family law considerations with other practice areas – in this case in relation to a claim under the Corporations Act 2001 (Cth) with respect to a superannuation payout.

NGUYEN V AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY

In this case, Mr Corbisiero was the member of a superannuation fund (Fund). In September 2019, Mr Corbisiero committed suicide. At the date of his death, Mr Corbisiero had a ‘death benefit’ through his Fund valued at $1.122m (Death Benefit).

Approximately nine (9) months prior to his death, Mr Corbisiero had made a ‘binding death benefit nomination’ in favour of his then de facto partner, Mr Nguyen. By this nomination, Mr Corbisiero nominated Mr Nguyen to receive 100%  of the Death Benefit, in the event of his death.

On the day of his death, Mr Corbisiero had sent a text message to his sister. This message, in brief, stated that: [2]

  • The message constituted Mr Corbisiero’s “will and testament”.
  • Mr Corbisiero wished to, “leave all my property and assets to my family to my brother and sister and my nieces and nephew only and no one else.”
  • Mr Nguyen was to receive “nothing of my assets…for he has put me in the position or stage of my life where I had enough.”
  • Mr Nguyen was not to be invited to Mr Corbisiero’s funeral.

Mr Corbisiero’s mother was the executrix of his estate and maintained that, at the time of her son’s death, his relationship with Mr Nguyen had ended, as shown by this text message.

The significance of this was, that the Rules of the Fund’s Trust Deed provided that the Death Benefit was payable to Mr Corbisiero’s “spouse” provided that such a relationship had not terminated. [3]

As can be seen below, the definition of “spouse” in the Trust Deed Rules assumed significance when the matter ultimately came before the Full Court of the Federal Court of Australia on appeal.

THE FUND’S DECISION

The Trustee of the Fund (Trustee) initially determined that Mr Nguyen was not Mr Corbisiero’s spouse at the time of Mr Corbisiero’s death. [4]

Following an objection from Mr Nguyen, the Trustee instead decided to award Mr Nguyen 20% of the Death Benefit. The Trustee, in its reasons, considered that the text message referred to above, “…reflects the wishes of the deceased member at the date of his death.”[5]

In awarding this 20%, the Trustee took account of the fact that, at the date of Mr Corbisiero’s death, Mr Nguyen was partially financially dependent upon him.[6]

MR NGUYEN CHALLENGES THE FUND’S DECISION

Mr Nguyen challenged this decision through the Australian Financial Complaints Authority Limited (AFCA). AFCA resolved to set aside the Trustee’s decision and to award Mr Nguyen 100% of the Death Benefit, on the basis that, at the time of his death, Mr Corbisiero remained in a de facto relationship with Mr Nguyen.[7]

AFCA’s reasons included that they did not consider that the text message had terminated the relationship:

“While the deceased may have had misgivings and vented his frustrations to his family and may have indicated to another party he wanted to leave the relationship, the evidence does not support he had actually taken steps to end his relationship with [Mr Nguyen] prior to his death.[8]

AFCA continued that the, “…evidence as a whole [showed] that Mr Corbisiero and Mr Nguyen had a mutual commitment to a shared life”,[9] and, “…were living together on a genuine domestic basis in a relationship as a couple at the date of [Mr Corbisiero’s] death.[10]

A FURTHER CHALLENGE BY MR CORBISIERO’S MOTHER

Mr Corbisiero’s mother, in her capacity as executrix of her son’s estate, then appealed AFCA’s decision to the Federal Court of Australia. Mrs Corbisieri reiterated her position that her son’s relationship with Mr Nguyen had ended by the time of his death, evidenced by the text message quoted above. 

The presiding judge, His Honour O’Callaghan J, concluded that AFCA had made an error of law in failing to take the text message as proof that Mr Corbisiero’s relationship with Mr Nguyen had ended.[11]

His Honour reasoned, “…the only construction of the text reasonably open is that Mr Corbisiero intended by writing and sending of it to terminate the relationship”,[12] as this text was, “…an unequivocal statement of his intention to terminate his de facto relationship with Mr Nguyen.”[13]

In his reasons, His Honour referred to various family law cases in support of his conclusion that, “…it is not necessary for a party to a de facto relationship to communicate their intention to the other party to “terminate” it”.[14]

His Honour referred favourably to the case of In the Marriage of Tye,[15] quoting with emphasis Justice Emery’s reasons in that case that, “…there can be no doubt that that unilateral intention of one spouse, not communicated to the other spouse, can bring the consortium vitae to an end.”[16]

His Honour further stated, “I do not agree that an expression of intention to terminate a relationship (or “to separate”, as in family law cases) in all cases requires some overt, physical act in addition to a statement of intention…But in any event, in the tragic circumstance of this case, by taking his own life, Mr Corbisiero did exhibit by his actions such an act.”[17]

APPEAL TO THE FULL COURT OF THE FEDERAL COURT OF AUSTRALIA

Mr Nguyen appealed O’Callaghan J’s decision to the Full Court of the Federal Court of Australia.

In his reasons, His Honour Justice Snaden agreed with O’Callaghan J that Mr Corbisiero had intended to end his relationship with Mr Nguyen.[18] His Honour continued that:

  • Mr Corbisiero’s death, in of itself, did not terminate the relationship, as otherwise, any binding death nominations would be immediately invalidated upon the death of a member. As such, what was important was whether the relationship was terminated prior to Mr Corbisiero’s death. [19]
  • Although he agreed with O’Callaghan’s conclusion that it is not necessary for a party to a de facto relationship to communicate their intention to the other party in order to terminate their relationship, “Where, however, there is no such communication, there must, I think, be some other conduct that is apt to stand as a practical manifestation of the intention so formed.”[20]
  • His Honour’s view was that termination requires “some other conduct inconsistent with the continuation of the relationship,” citing various cases as examples, such as those involving desertion, unilateral relocation with children, refusal to cohabit, or refusal to communicate, other than in writing.[21]

His Honour stated that he did not agree with O’Callaghan J that the text message had terminated the de facto relationship,[22] or, at the very least, it was open to AFCA to reason in that way. [23]

His Honour concluded that, in this case, the only such conduct which ended the relationship was Mr Corbisiero’s suicide, which could not stand as having ended the relationship prior to Mr Corbisiero’s death, given any member’s death would otherwise void a valid binding death benefit nomination. [24] As such, His Honour’s view was that Justice O’Callaghan’s decision should be set aside.

In a separate judgment, His Honour Justice McElwaine focused on:

  • The rules of the Fund provided a definition of “spouse” as including, “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.”[25]
  • AFCA had made a finding of fact that, at the time of Mr Corbisiero’s death, Mr Nguyen and Mr Corbisiero shared a common residence, even though one or the other stayed elsewhere from time to time, and AFCA was accordingly satisfied that Mr Corbisiero and Mr Nguyen were in a spousal relationship and Mr Nguyen met the definition of a spouse as provided for in the Trust Deed. [26]

McElwaine J concluded, “With respect to [O’Callaghan J], the respondent’s appeal to His Honour [being Mrs Corbisieri’s appeal to the Federal Court] raised a false issue by focusing on the effect of the text message which distracted attention from the provisions of the Rules [of the Trust]”. [27]

The Full Court concluded that Mr Nguyen’s appeal should be allowed, and that AFCA’s decision awarding Mr Nguyen 100% of the Death Benefit should stand.

Mrs Corbisieri, in her capacity as executrix of her son’s estate, was also ordered to pay Mr Nguyen’s costs of the appeal. 

LAVAN COMMENT

The circumstances of this case are unique and tragic. While the Full Court of the Federal Court of Australia accepted broadly that Mr Corbisiero intended to end his relationship with Mr Nguyen, the fact that he died only a matter of hours after communicating this intention to his sister perhaps meant that Mr Corbisiero had never had the opportunity to do so in a manner that would have voided the Death Benefit and reflected his wishes expressed in the message to his sister.

This could have included ceasing to live with Mr Corbisiero and/or completing a new binding death benefit nomination.

In the circumstances, however, little more could have been expected of Mr Corbisiero.

Should you require assistance with a family law matter or updating a will or binding death benefit nomination following the end of a relationship, please contact Lavan.

 

 

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.
11 December 2024
Family Law Updates
AUTHOR
Jorja Brady
Partner
AUTHOR
Alistair Graham
Senior Associate
SERVICES
Child Support
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FOOTNOTES

Content warning – This article discusses a case involving suicide. If you or anyone you know needs help:

Lifeline (24-hour Crisis Line): 131 114

Kids Helpline: 1800 55 1800

MensLine Australia: 1300 78 99 78

Suicide Call Back Service: 1300 659 467

Beyond Blue: 1300 22 4636

Headspace: 1800 650 890

 

[1] Nguyen v Australian Financial Complaints Authority [2024] FCAFC 77.

[2] Nguyen at [4].

[3] As set out at paragraph 16 of Nguyen, rules 7.10C and 7.10D of the Fund’s Trust Deed provided, in brief, that the Trustee of the Fund would be  required to pay the deceased member’s Death Benefit to the nominated persons provided that such nomination had not lapsed, and that such a nomination, “…ceases to be valid and effective” upon, “the date…the Member’s de facto relationship (including with a person of the same sex) terminates”.

[4] Nguyen at [7].

[5] Corbisieri v NM Superannuation [2023] FCA 1319 at [17].

[6] Ibid

[7] Nguyen at [9].

[8] Nguyen at [21].

[9] Nguyen at [22].

[10] Nguyen at [23].

[11] Corbisieri at [30].

[12] Ibid.

[13] Corbisieri at [32].

[14] Corbisieri at [36] to [40].

[15] In the Marriage of Tye [1976] FamCA 8; (1976) 9 ALR 529; [1976] 1 FamLR 11, 235.

[16] Corbisieri at [36].

[17] Corbisieri at [42].

[18] Nguyen at [32].

[19] Nguyen at [35].

[20] Nguyen at [38].

[21] Nguyen at [39].

[22] Nguyen at [42]

[23] Nguyen at [41].

[24] Nguyen at [41]

[25] Nguyen at [46].

[26] Nguyen at [48].

[27] Nguyen at [49].