Radanov v AFCA [2026] FCA 929

Radanov v Australian Financial Complaints Authority [2026] FCA 929

In this decision of the Federal Court, the Applicant spouse of the deceased (named Veljko) at their time of death failed in his challenge against a decision of the First Respondent, the Australian Financial Complaints Authority (AFCA), which diluted his original spouse death benefits of 100% from the deceased’s super to 25% in favour of the deceased spouse’s (named Kylie’s) three children who received 25% each.

Kylie was a member of Retail Employees Superannuation Trust (REST) in which Kylie’s death benefits left approximately $348,600 payable after she died on 7 November 2021. At the time Kylie was married to but separated from Athanase. Kylie’s three children with Athanase were Caitlin, Alexandra and Christopher.

In October 2022 REST originally decided to pay Veljko 100% of Kylie’s death benefits. Kylie’s children disputed that decision against REST directly and in January 2023 REST decided to maintain its decision of 100% to Veljko. The dispute then went to AFCA which remade the decision of REST to instead dilute Veljko’s benefits to 25%, such that 25% would go to each of Veljko, Caitlin, Alexandra and Christopher.

AFCA’s Decision

AFCA remade the REST trustee’s original decision to distribute 100% of Kylie’s death benefits to Veljko on the basis that it was not fair and reasonable.

The Court noted a number of factors in AFCA’s considerations which included at paragraphs 19, 22:

[Kylie] expressed a wish to provide Caitlin, Alexandra and Christopher with a lump sum; and [... Kylie] wished to have assets to leave to her children the Court, stating at paragraph 45: “AFCA is entitled to have regard to testamentary wishes expressed by a deceased”

[but] (2) Athanase, Caitlin, Alexandra and Christopher were each not financially dependent upon [Kylie]

The Court also set out that AFCA considered Veljko was only partially financially dependent upon Kylie and had a limited expectation of future financial support at paragraph 22:

[they] (b) resided together from at least October 2019 [... and] (d) shared equally the costs of their bills and shopping;

[Kylie] “considered him [Veljko] to be her partner and that she was building a life with him” and consequently, it was open “to the trustee to conclude that they had a mutual commitment to shared life”

(7) [Kylie]: [...] (c) was in a poor financial position; (d) sometimes borrowed small amounts of money from [Veljko]; [...] and (8) [Veljko] shared his whole pay packet with [Kylie] when she was made redundant three to four months before her death.

FCA Challenge to AFCA - Three Grounds Failed

At paragraph 26 the Court set out the three questions of law to be determined, by way of summary:

whether AFCA’s finding that Veljko was only partially financially dependent upon Kylie was not reasonable and lacked evidential support
whether AFCA’s finding that Veljko only had a limited expectation of future financial support from Kylie was not reasonable and lacked evidential support
whether AFCA failed to consider the purpose of superannuation death benefits under section 3.3 of ‘AFCA Approach to superannuation death benefit complaints’ (AFCA DB Approach) including that: “The purpose of a death benefit is primarily to provide for [...] a surviving partner [...]”

First question amended submissions

The Court stated at paragraph 41 that it was implicit from Veljko’s submissions that he believed the only conclusion open to AFCA was to find that Veljko was fully financially dependent upon Kylie.

However the Court found that although it was well open on the evidence for AFCA to find that Veljko was partially financially dependent upon Kylie, it also did not follow that the REST trustee’s decision to distribute 100% to Veljko and leave out Kylie’s children was fair and reasonable in the presence of expressed wishes by Kylie to also provide for her children.

The Court also noted that under rule 8.5 of the governing rules of REST there was no requirement “that the death benefit be distributed only to persons who were financially dependent upon the deceased” (at paragraph 42).

Second question amended submissions

The Court agreed with AFCA’s conclusion that Veljko’s expectation of future financial support from Kylie “was limited, in view of the precarious state of the Kylie’s health after her stroke at age 34” and “the fact that her retirement was some way off, and not a foregone conclusion” (at paragraph 53).

Third question amended submissions

In response to Veljko’s claim that AFCA had not considered him to receive from Kylie’s death benefits as the surviving spouse and financial dependant of Kylie, the Court provided at paragraph 31 (bold emphasis from the Judgment):

In construing AFCA’s reasons in the context of a contention that it failed to consider a particular matter, the oft-cited observations of the Full Court of this Court (French J (as his Honour then was), Sackville and Hely JJ) in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 [...] are apposite:

46 … The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

The Court considered AFCA’s reasoning in which AFCA had already considered the purpose of superannuation death benefits in its own opinion in this case, including at paragraph 69 (bold emphasis added):

As AFCA explained, it considered that: (1) any payment to [Veljko] in excess of $87,000 would exceed his future financial expectations of [Kylie] and provide him with a windfall payment; [... and] (2) 25 per cent of the death benefit “adequately met [Veljko’s] partial financial dependence [on Kylie …]”

The Court also did not consider that section 3.3 of the AFCA DB Approach was a mandatory rule as submitted by Veljko, but the Court referred to its response to the first question that “AFCA may have regard to testamentary wishes expressed by a deceased” (at paragraph 72).

Takeaway points

There was no mention of any binding death benefit nomination or expired binding death benefit nomination in this case which would have overridden any ability to challenge the allocation made under the binding death benefit nomination. If Kylie had wished to provide for her three children then the binding death benefit nomination is likely to have made a similar allocation as the outcome of AFCA’s decision.