On 6 December 2018, before his death by suicide, Corbisiero signed and provided to the Trustee a “beneficiary nomination form”, pursuant to which he made a “binding death benefit nomination” in favour of his then de facto partner, Nguyen.

However, on the morning of his death, Corbisieri sent a message via WhatsApp to his sister stating he wanted all his property and assets to go to his family and Nguyen should receive nothing because “he has put me in the position or stage of my life where I had enough”.

The superannuation trustee subsequently decided Nguyen was not Corbisieri’s spouse at the time of his death and refused to pay the benefit. Nguyen then filed a complaint with AFCA, which overturned the trustee’s decision last May and awarded 100 per cent of the death benefit to him.

Following this, Corbisieri’s mother and executor of his will appealed AFCA’s decision arguing the message indicated an intent to end the relationship, disqualifying Nguyen from accessing the benefit.

This month, the Federal Court upheld AFCA’s initial decision finding that the nomination was valid, agreeing that AFCA’s conclusion that the “trustee’s decision to pay the death benefit otherwise than entirely to Mr Nguyen was one that should be impugned as ‘not fair and reasonable’”.

The court resolved to set the trustee’s decision aside and, in its place, require that the death benefit be paid entirely to Nguyen.

Justice John Snaden, one of the three presiding judges in the case, stated that in determining that, at the time of his death, Corbisiero remained in a de facto relationship with Nguyen, AFCA had to consider the concepts of “genuine domestic relationship” and whether the relationship between the two had “terminate[d]”.

AFCA did acknowledge Corbisiero’s message to his sister before his death and determined that while there may have been some disagreement just before Corbisiero’s death, it did not consider the relationship had been terminated.

“While [Corbisiero] 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 [Nguyen] prior to his death,” Justice Snaden said.

“The [AFCA] panel considered the relationship was ongoing up to the date of death and therefore its duration was from 2006 until the date of [Corbisiero]’s passing, spanning some 13 years.”

It added that evidence provided to AFCA supported Nguyen and Corbisiero undertook actions “which are consistent with maintaining a continued commitment to a shared life up until the date of Corbisiero’s death”.

It found that Corbisiero made a non‑lapsing binding nomination in December 2018 in favour of Nguyen, which is after Corbisiero’s family alleged the relationship changed to one of friendship.

Justice Snaden added that “in truth, the appeal turns upon consideration of a single question, namely whether the learned primary judge was correct to discern an error of law in AFCA’s conclusion that Mr Nguyen remained Mr Corbisiero’s spouse at the time of the latter’s death”.

He said Corbisiero’s relationship with Nguyen “very plainly” terminated from the point of his death, however, the question for consideration was whether the relationship terminated prior to (rather than because of) Corbisiero’s death.

“Were it otherwise, the death of a member would always invalidate what would otherwise stand as a valid binding death benefit nomination,” he said.

The judgement said AFCA considered the relationship could not terminate merely as a consequence of Corbisiero’s state of mind or its communication to his sister, but that there needed to be some conduct on his part that was competent to terminate it and on the evidence no such conduct was apparent.

“A person who tells a third party of his or her intention to end a de facto relationship should not be understood, merely by that communication, to have done so,” Justice Snaden said.

“In my view, termination requires some other conduct inconsistent with the continuation of the relationship – for example, desertion (as in In the Marriage of Tye [1976] FamCA 8; (1976) 9 ALR 529 (Emery J)), unilateral relocation with children (as in Hibberson v George [1989] NSWCA 100; (1989) 12 Fam LR 725 (Hope, Mahoney and McHugh JJA)), refusal to cohabitate (as in S v S [2000] FMCAfam 50 (Brewster FM)), or refusal to communicate otherwise than in writing (as in S v B (No 2) [2004] QCA 449; [2005] 1 QdR 537 (McPherson and Williams JJA, Dutney J)).”