The facts of the case show that the member had four daughters and two stepsons. The daughters were in dispute against the member’s wife.

The member and his estranged wife were married in September 2007 and had consent orders of separation and property and financial settlement in June 2020, which was later discharged in April 2021 with divorce proceedings commenced around December 2021.

The court heard they had been estranged for six years but remained legally married at the time of the member’s death and were living separately a considerable distance away from each other. The member executed his will leaving his estate to his wife on 8 March 2019, which he later sought to revoke.

The wife claimed she was unemployed, on a disability support pension and that the deceased was financially supporting her. The total amount in dispute was around $171,301 with accrued interest.

The member left a non-binding death benefit nomination dated 2 February 2018 to leave his entire superannuation benefits to his six children in roughly equal shares, excluding his wife. As is standard, the superannuation did not automatically form part of his estate.

On a Google search, the AustralianSuper website shows the non-binding nomination can be made via the mobile app or on the website but states “your nomination is not legally binding and although we’ll consider who you choose, ultimately we are legally responsible and will need to consider relevant laws when making a decision”.

The member obtained a violence restraining order against his wife on 12 December 2021 and the same day emailed his lawyer asking to immediately amend his will, which named her as the sole beneficiary to instead give his entire estate to his four daughters in equal shares, revoking all of his prior wills.

No reference was made that the amended will was completed. The email instruction to his lawyer was acknowledged by the AustralianSuper trustee but ultimately disregarded. On 30 December 2021, the police attended the member’s house to serve on him a family violence restraining order taken out by his wife against him and notified his daughter that he was found deceased of natural causes with no signs of suicide.

The facts continued that the AustralianSuper trust deed included an obligation for the trustee to distribute death benefits to the usual superannuation dependants being the spouse or children or legal personal representative.

The AustralianSuper trustee initially ignored the non-binding death benefit nomination and distributed the entire superannuation interest to his LPR. His estranged wife disputed the trustee’s decision and requested the superannuation benefit be paid to herself.

One of his daughters disputed the trustee’s decision and requested the benefit be paid to his four daughters in equal shares.

The AustralianSuper trustee notified them of its amended decision to then pay the entire superannuation benefit to the wife, after which the four daughters lodged an objection to AustralianSuper and shortly after lodged an email complaint with AFCA.

AFCA decided it was unreasonable for the children to obtain nothing where its guidelines stated that it would take into account the member’s wishes “even where a nomination is non-binding”.

AFCA reallocated the member’s benefits 50 per cent to his wife, mainly to settle jointly owned house mortgage obligations following property settlement of the divorce, and the other 50 per cent to be divided equally between his six children.

In its ruling, the Federal Court found no reason to overturn AFCA’s decision based on rejecting all of the wife’s four broad arguments, firstly that AFCA had misapplied the superannuation law and the AustralianSuper trust deed, which it was found that AFCA had not.

Second, the court found that AFCA had wrongly made assumptions about reasonable expectations of financial support to the beneficiaries including the wife. It was found that no party had expectations of financial support extending beyond what they would receive under AFCA’s reallocation of the superannuation benefits: 50 per cent to the wife and 50 per cent to the six children equally.

Finally, the court said the wife was not provided an opportunity to address AFCA’s reasons for its change from the trustee’s initial amended decision to distribute 100 per cent of the member’s death benefits to her, to her receiving only 50 per cent, and that some evidence considered was obtained “by trespass”.

The court said the wife “had every opportunity to provide additional information relating to her financial circumstances and prospective divorce proceedings. She did in fact provide information to AFCA.”

“The mere fact that AFCA substituted a different manner of apportionment of the benefit in this case does not evidence an absence of procedural fairness but rather is the result of AFCA undertaking the task required of it. The complaint process anticipates a potential change in outcomes.”