While benefits were paid to the three children in 1986, Mrs Buck’s benefits were refused on the grounds that she no longer qualified as a spouse under the Superannuation Act 1979, which was the legislation relevant to Mr Empson’s super scheme at the time.

Mrs Buck then applied for a review of the decision in 2017, stating that she had been told there were no grounds for appeal when she was originally refused the benefits in 1986, but that on retirement from her job in 2016, she had decided to further investigate the matter while sorting through her ex-husband’s paperwork.

Mrs Buck’s case was that she believed she was eligible to receive the benefits under section 3(2) of the relevant act, which provided for a temporary separation of spouses due to medical reasons. She stated that her ex-husband had been suffering from severe psychiatric illness at the time of their separation which made it dangerous for her and the children to live with him.

However, the AAT’s decision was that it was Mrs Buck’s choice to separate from her husband and she was therefore not eligible under this section of the act. Further, it found the decision of the commissioner of superannuation at the time was made in accordance with the law, and that there was no obligation on the commissioner as trustee of Mr Empson’s super scheme to exercise discretion given the super fund was not a discretionary trust.

The tribunal, therefore, concluded that Mrs Buck did not have a reasonable prospect of success in her application for review of the non-payment of death benefits and upheld the Commonwealth Superannuation Corporation’s decision to refuse a review of her case.