Brunswick and Repatriation Commission (Veterans' entitlements)

Brunswick and Repatriation Commission (Veterans' entitlements) [2018] AATA 2564 (26 July 2018)
Division:VETERANS' APPEALS DIVISION
File Number:2017/0457
Re:David Brunswick
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner
Date:26 July 2018
Place:Perth

The Tribunal affirms the decision under review.
........[sgd]................................................................
Brigadier A G Warner
CATCHWORDS
VETERANS’ AFFAIRS – overpayment of service pension – date from which Applicant’s service pension should be calculated at partnered rate – date on which Applicant entered into de facto relationship – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) – s 43(1)
Veterans’ Entitlements Act 1986 (Cth) – s 5E(2) – s 5E(3) – s 5E(5) – s 11A – Schedule 6 – Schedule 6-B1
CASES
Hafza v Director-General of Social Security (1985) 60 ALR 674
Pelka v Secretary, Department of Family & Community Services [2006] FCA 735; 43 AAR 220
REASONS FOR DECISION
BRIGADIER A G WARNER
26 July 2018
NATURE OF APPLICATION

Mr Brunswick seeks review of a reviewable decision dated 17 November 2016 which affirmed the Respondent’s determination dated 19 May 2016 which found that Mr Brunswick entered into a de facto relationship on 19 December 2015 (T17). As a result of this determination Mr Brunswick was found to have been overpaid service pension from 19 December 2015 and that the overpayment constituted a debt that should be recovered.
Mr Brunswick attended the hearing and was represented by Reverend Dr Alan Stubbs, a veterans’ advocate. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers.
ISSUES
The issue for the Tribunal’s consideration is the date from which Mr Brunswick’s entitlement to a service pension should be calculated at the partnered rate. That requires consideration of the date on which Mr Brunswick entered into a de facto relationship with Mrs Linda Terry.
BACKGROUND
Mr Brunswick was born in 1939 and is covered by the Veterans’ Entitlements Act 1986 (Cth) (VEA).He was granted a service pension in 2001 and receives a Department of Veterans’ Affairs (DVA) 10% disability pension.
Mr Brunswick lived in Collie with his wife in their own home until her death. Mr Brunswick subsequently placed the home on the market in 2013 and it was finally sold on 19 April 2016 (Exhibit A4, paragraph 3.7).
Mr Brunswick met Mrs Terry in 2014 (Exhibit A4, paragraph 3.5).
Mr Brunswick and Mrs Terry exchanged cohabitation agreements on 17 March 2016 (Exhibits A2 and A3).
On 27 April 2016, Mrs Terry lodged a Claim for Service Pension by a Partner (Part A in T8/22-36, Part B in T9/37-49) and that claim form was signed by Mr Brunswick. The claim form includes a response to question 17 that Mrs Terry and Mr Brunswick are in a de facto relationship and that they commenced living together on 19 December 2015 (T8/25). The claim form also indicates, at question 42, that Mr Brunswick and Mrs Terry held a joint bank account (T8/33).
In response to question 14 at Part B of the claim form, Mrs Terry advised that she had ceased working on 13 March 2016 (T9/43).
In a telephone call on 19 May 2016, the delegate spoke with both Mrs Terry and Mr Brunswick in order to confirm the date upon which the de facto relationship commenced (T10/50). Mrs Terry advised that she had been in a relationship with Mr Brunswick for two years and that he had moved into her house before Christmas 2015. Mrs Terry noted that Mr Brunswick was “living with her from then on” and confirmed that 19 December 2015 was the date upon which Mr Brunswick moved into her house.
In that same telephone call, Mr Brunswick also confirmed the start date of the de facto relationship as 19 December 2015 (T10/50). Mr Brunswick acknowledged he had not notified the DVA of his change of circumstances within 14 days as required. On being advised of a likely overpayment as a result of this, Mr Brunswick then claimed that he only spent Thursday to Monday at Mrs Terry’s house and that he spent the remainder of the time at his house in Collie.
By determination dated 19 May 2016, Mr Brunswick was notified that his service pension had been “retrospectively reassessed at the partnered rate from the 19th December 2015” (T13/60).
By email dated 21 May 2016, Mrs Terry stated that she and Mr Brunswick had “made mistakes” in completing the claim form and in indicating that they commenced living together on 19 December 2015. Mrs Terry noted that “we both thought if we put december (sic) down, that you could see we had a serious relationship” (T14/66).
By letter received 26 May 2016, Mr Brunswick requested a review of the delegate’s decision (T16/68). Mr Brunswick noted that he “commenced an in depth relationship” with Mrs Terry in mid-December 2015 and had been in a platonic relationship for about 12 months prior to this. Mr Brunswick claimed that as a result of medical treatment he was obtaining (which meant he couldn’t drive), he stayed with Mrs Terry some nights a week from December 2015 but did not start living full time with her until March 2016 when he sold his house in Collie.
On 17 November 2016, a Service Pension Review Officer (SPRO) affirmed the determination of 19 May 2016 (T17/69). The SPRO was satisfied on the balance of probabilities that Mr Brunswick had started living in a de facto relationship on 19 December 2015 and not in March 2016.
LEGISLATION
Schedule 6 of the VEA provides for the calculation of rates of service pensions. SCH6-B1 of Module B of Schedule 6 provides that a person who is partnered is to be paid at a different rate to a single veteran.
Subsection 5E(5) of the VEA provides that a person is partnered if the person is the member of a couple. Subsection 5E(2) provides the definition of “member of a couple”:
(2)A person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not living separately and apart from the other person on a permanent basis; or
(aa)both of the following conditions are met:
(i)a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;
(ii)the person is not living separately and apart from the other person on a permanent basis; or
(b)all of the following conditions are met:
(i)the person is living with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii)the person is not legally married to the partner;
(iii)the person and the partner are, in the Commission's opinion (formed as mentioned in section 11A), in a de facto relationship;
(iv)the person and the partner are not within a prohibited relationship.
Subsection 5E(3) of the VEA provides that:
(3)For the purposes of subparagraph (2)(b)(i), a person is to be treated as living with another person during:
(a)any temporary absence of one of those persons;
(b)an absence of one of those persons resulting from illness or infirmity;
if the Commission is of the opinion that they would, but for the absence, have been living together during that period.
The phrase “temporary absence” is not defined in the legislation. The Respondent cites the case of Hafza v Director General of Social Security (1985) 60 ALR 674, in which Wilcox J considered the meaning of the phrase “temporary absence” in relation to Social Security legislation. He noted that:
The Shorter Oxford Dictionary defines “temporary” as “lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need”. The Macquarie Dictionary definition is to similar effect, with the addition of “not permanent”. In one sense any absence from Australia, which in fact comes to an end, is temporary; it turns out to have lasted for a limited — as distinct from an unlimited — time and to have been not permanent. In this sense everything in human affairs, including life itself, is “temporary”. But it is doubtful whether the word “temporary” was used in this wide sense in s 103(1)(d). As I have pointed out, had it been intended to protect the endowment rights of persons absent abroad for lengthy periods, who ultimately return to Australia and who, in the meantime, maintain some association with Australia, it would have been enough to refer to residence in Australia. Plainly it was intended to be more restrictive than that. I think that the adjective “temporary” was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose. The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of “temporary” absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.
Section 11A of the VEA provides that:
In forming an opinion for the purposes of this Act whether 2 people are living together in a de facto relationship, regard is to be had to all the circumstances of the relationship including, in particular, the following matters:
(a)the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day-to-day household expenses;
(b)the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii)the living arrangements of the people; and
(iii)the basis on which responsibility for housework is distributed;
(c)the social aspects of the relationship, including:
(i)whether the people hold themselves out as being in a de facto relationship with each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d)any sexual relationship between the people;
(e)the nature of the people's commitment to each other, including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a de facto relationship.
EVIDENCE
The evidence before the Tribunal comprised:
·the “T Documents” (T1-T20, pp1-84);
·Statement of Linda Terry dated 24 January 2017 (Exhibit A1);
·Cohabitation Agreement received by the Tribunal on 17 May 2017 (Exhibit A2);
·Cohabitation Agreement received by the Tribunal on 17 May 2017 (Exhibit A3);
·Applicant’s Replacement Statement dated 10 December 2017 (Applicant’s Statement) (Exhibit A4);
·Respondent’s Statement of Issues, Facts and Contentions dated 24 November 2017 (Respondent’s SIFC) (Exhibit R1);
·the oral evidence of Mrs Linda Terry; and
·the oral evidence of the Applicant.
Oral evidence of Mrs Terry
Mrs Terry read a prepared statement:
I’d like to say that I’m responsible for this situation and not David. When I filled the form for the application of the DV pension I said to David, “Shall we put that our de facto relationship started in December?” which it did. I thought that de facto relationship meant that you had an intimate relationship. I did not think that it would cause all this problem. So let’s say I was lying, which was not my intention, I thought it sounded like we had a secure relationship. Yes, I should have told [the delegate] this when I spoke to her. David did not move into my house till the end of March, beginning of April. On [19 March 2016] I told my children that he was moving in, they knew about the relationship and I felt I needed their approval for him to move in. All the important things that happened at this time shows that he was not living with me, opening a joint bank account, selling his house, still playing golf in Collie and doing his radio show. We also did a de facto agreement, which a JP signed in March. David did stay at my house for some weekends, as he lived in Collie, so it was not a 10 minute drive for him to get home. David had an operation in December so was unable to drive for quite some time and had appointments in Bunbury, so I would go down there, when I was not working, and drive him to the doctor’s. Some weekends David did not come up as he was playing golf all weekend. In March I lost my job so my mind was on other things, David moving in with me was a hectic time. At no time between December and March did we share expenses. He had his bills and I had mine. So I’m admitting that I lied to [the delegate] on my written application that I lied. David should not be held responsible for this.
Mrs Terry also told the Tribunal that:
·19 December 2015 was significant because it was roughly the time her relationship with Mr Brunswick changed from friends to a couple;
·it was sometime in March 2016 before Mr Brunswick moved in with her and there was no financial agreement between them until then;
·she and Mr Brunswick had been going out for about two years before he moved in with her, and that on 19 March 2016, she told her children about the move. Mrs Terry said that her children already knew about the relationship because she and Mr Brunswick had been on holiday to Thailand together in October 2015;
·when she completed the pension claim on 27 April 2016 (paragraph 8 above refers), she “…considered a de facto relationship started when our relationship changed… At the time, I didn’t realise a de facto relationship was that you lived with someone, not that you slept with someone”; and
·on occasions when Mr Brunswick stayed at her home prior to the signing of a cohabitation agreement in March 2016 (Exhibits A2 and A3), he would sometimes do the dishes when she had cooked a meal, they socialised with friends as a couple, provided emotional and physical support to each other, and at that time she intended that the relationship would continue indefinitely.
Further, in response to a question on an email she sent to the Respondent on 21 May 2016 and which stated in part: “…I think myself and david (sic) made mistakes while we were filling in the forms. I was filling it in thinking in present terms. When we filled out the de facto part, i (sic) was thinking when it became serious. david (sic) used to come up on a thursday (sic) night and left on a monday (sic) morning” (T14/66), Mrs Terry answered: “Occasionally he would but I don’t consider that he’s living with me”.
Oral evidence of Mr Brunswick
During the hearing, Mr Brunswick:
·told the Tribunal that he chose 19 December 2015 as the commencement date of his cohabitation with Mrs Terry (see paragraphs 8 and 10 above) because it was the first day that they had intimate relations, and they “…figured that that was virtually becoming a de facto relationship, not understanding fully what a de facto relationship was”;
·told the Tribunal that he did not move into Mrs Terry’s house until the end of March, beginning of April 2016 and that in the period December 2015 to April 2016 he journeyed backwards and forwards between his house in Collie and Mrs Terry’s house in Cooloongup. He described the pattern of this journeying as:
I’d come up, maybe once a month, on the Thursday, but it was usually Friday. If she was not working for that weekend I’d come up on the Friday evening and I would be going back Sunday morning, Sunday afternoon, because I had the radio show on the Monday.
·agreed that it was reasonable to conclude that his de facto relationship commenced on 19 March 2016 which was also the day on which Mrs Terry spoke with her family and it was confirmed that he would move into her home;
·explained that he entered his address as Mrs Terry’s address on the cohabitation agreements signed on 17 March 2016 (Exhibits A2 and A3) on the advice of the Justice of the Peace who witnessed the documents; and
·told the Tribunal that he underwent surgery on his thumb on or about 17 December 2015, and Mrs Terry stayed overnight at his house in Collie on 18 and 19 December 2015. He said that in the period between then and 19 March 2016, he and Mrs Terry shared a bedroom and bed when he stayed at her house, and during those stays he helped make the bed, helped wash the dishes and they occasionally socialised with others. Mr Brunswick said that Mrs Terry provided him with emotional support, and after he had injured his thumb, physical support.
CONSIDERATION
The Respondent submits, and the Tribunal agrees that Mr Brunswick is not married and therefore does not fall within s 5E(2)(a) of the VEA (Exhibit R1, paragraph 4.3).
The Applicant’s Statement submits that there are two conflicting accounts of the relationship between Mr Brunswick and Mrs Terry:
…The first is accepted by the Respondent. This version relies on written dates as well as Ms. Terry’s Application responses to two brief telephone conversations with the Assessor. Apart from this there is no evidence to support this point of view and the types of actions that would normally have been associated (sic) the establishment of a de-factor (sic) relationship (ie. determining financial arrangements, transference of household goods, co-habitation agreements etc.) did not occur. Apart from Mr Brunswick’s weekend visits to Cooloongup, nothing changed. Mr Brunswick continued his established routine of golf and radio presentations in Collie and visiting Ms. Terry at the weekend.
The other account put forward by both Ms. Terry and M. (sic) Brunswick asserts that the inclusion of the December dates is a mistake and provides a different sequence of dates and activities. This sequence of events is outlined above. (cf 3.7ff)
This account centres around the sale of Mr. Brunswick’s house. All the things that one would expect to happen when a mature couple decide to enter a de-factor (sic) relationship happened and Mr Brunswick moved to Cooloongup. It should be noted that these arrangements were all concluded well before any questions about dates were raised by the Repatriation Commission (Exhibit A4, paragraph 4.6).
In considering the matters detailed in s 11A of the VEA, the Tribunal has regard to all the evidence, the contradictions and inconsistencies in the evidence and the effects of the passage of time. In Pelka v Secretary, Department of Family & Community Services [2006] FCA 735; 43 AAR 220 (Pelka) the Federal Court explained (at 46) that a decision-maker determining whether a person is in a de-facto (previously “marriage-like”) relationship:
Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
The evidence is, and there is no dispute, that Mr Brunswick and Mrs Terry were in a relationship for some time prior to 19 December 2015. The Tribunal accepts the evidence that the relationship was of an intimate nature from that date. Mr Brunswick and Mrs Terry contend that although their relationship was intimate, it did not become a de facto relationship until 19 March 2016. Before the Tribunal, Mr Brunswick agreed with his advocate that 19 March 2016 could be a suitable date from which his relationship with Mrs Terry could be regarded as a de facto relationship.

In her prepared statement before the Tribunal (see paragraph 22 above), Mrs Terry said that she had discussed the response to question 17 in the pension claim with Mr Brunswick before indicating on the claim form that she was in a de facto relationship and commenced living together with Mr Brunswick from 19 December 2015 (T8/25). Immediately above Mrs Terry’s signature on the form is the declaration statement: “I declare that the information I have given is correct. I understand that there are penalties for deliberately giving false or misleading information” (T8/36). Mrs Terry and Mr Brunswick both signed the statement section (Section D) of Part B of the pension claim form immediately below an identical declaration statement (T8/49).
The Tribunal notes that Mr Brunswick applied for a service pension in 2001 and is in receipt of a DVA disability pension (paragraph 4 above refers). The Tribunal considers it reasonable to expect that Mr Brunswick has some experience with the completion of DVA forms and the requirement for responsibility, accuracy and honesty in relation to such forms.
In a telephone conversation with DVA on 19 May 2016, both Mr Brunswick and Mrs Terry confirmed 19 December 2015 as the date their de facto relationship started. The file note of that telephone conversation records that Mrs Terry advised that she had been in a relationship with Mr Brunswick for two years and that he had moved into her house before Christmas 2015 and was living with her from then on. Mrs Terry agreed that the date entered on the pension claim form, 19 December 2015, was the date Mr Brunswick moved in (T10/50).
The DVA file note records that Mr Brunswick confirmed the start date of the de facto relationship as 19 December 2015. He acknowledged that he had not advised DVA within 14 days of his change of circumstances. When told of a likely overpayment as a result of this change, Mr Brunswick advised that he spent Thursday to Monday at Mrs Terry’s house and the balance of the week at his home in Collie (T10/50).
During the oral evidence of Mr Brunswick, Dr Stubbs raised a doubt as to whether the DVA file note (T10/50) mentioned in the preceding two paragraphs was contemporary with its subject conversation. There is no evidence before the Tribunal to suggest that the file note is anything but what it purports to be.
In relation to the co-habitation agreement between Mr Brunswick and Mrs Terry made on 17 March 2016 (Exhibits A2 and A3), the Respondent submits:
…This agreement may be a registered de facto agreement which would mean that the applicant fell within the definition at paragraph 5E(2)(aa) of the VEA as at 17 March 2016. The respondent contends that as at the date of the agreement, the parties were already living together, evidenced by the fact that both parties listed [Mrs Terry’s address] as their home address. Although this co-habitation agreement evidences the state of affairs as at March 2016, it does not follow that that was the date that the parties commenced living together as de facto partners (Exhibit R1, paragraph 4.5).
The Respondent’s contention is supported by the information provided by Mrs Terry in the pension claim form (T8/23) and by the responses provided by both Mr Brunswick and Mrs Terry to the DVA telephone enquiry on 19 May 2016 (T10/50).
The Respondent’s SIFC submits that:
The applicant’s weekly absences from Ms Terry’s home, between Mondays and Wednesdays each week, were for the defined purpose of attending to his volunteer work in Collie, and during this time he lived in his house which was actively being marketed for sale. The respondent contends that these short absences were defined in advance and for a specific passing purpose, and were therefore temporary absences from his principal home with Ms Terry. Had the applicant not been undertaking his radio show on Mondays and Wednesdays he would not have otherwise been absent from the home he shared with Ms Terry (Exhibit R1, paragraph 4.10).
The Respondent’s contention is supported by the advice Mr Brunswick provided to the DVA on 19 May 2016 (see paragraph 33 above), and by Mrs Terry’s statement in an email to DVA on 21 May 2016, that “david (sic) used to come up on a thursday (sic) night and left on a monday (sic) morning….he did the local radio show every monday (sic) and Wednesday (sic)” (T14/66). Before the Tribunal, Mr Brunswick contended that his stays with Mrs Terry were often not as regular or consistent as portrayed by the Respondent, particularly in the period immediately following his thumb surgery, but conceded that when he left he knew the approximate date that he would be back at Mrs Terry’s house. He said that at times his stays with Mrs Terry depended on whether she was working or whether he had an activity at his golf club in Collie, and that he would have been aware of these circumstances.
The determination of a date on which a de facto relationship commenced in circumstances such as those in the present proceedings is difficult, particularly when there are inconsistencies between oral evidence and earlier more contemporaneous written evidence. The difficulty is exacerbated by Mrs Terry’s admission that she lied in the pension claim form (T8) and Mr Brunswick’s statement before the Tribunal that his memory of relevant events “is not all that great.”
Whilst Mr Brunswick seeks a decision that the de facto relationship began on 27 April 2016, he has also agreed that 19 March 2016 would be a suitable date (see paragraph 29). Having regard to the matters listed in s 11A of the VEA, the Tribunal accepts that there is material to support consideration of a date sometime after 19 December 2015, including:
(a)Mrs Terry’s contention that she did not understand what constituted a de facto relationship and that she lied in the pension claim form;
(b)Mrs Terry’s contention that Mr Brunswick did not move into her home, or move furniture in, until she had advised her family of their intentions on 19 March 2016;
(c)Mr Brunswick’s activities in Collie post 19 December 2015 and the finalisation of the sale of his Collie house in April 2016;
(d)the evidence of Mr Brunswick and Mrs Terry that they did not have a joint bank account at 19 December 2015 and maintained separate financial arrangements;
(e)the co-habitation agreement made on 17 March 2016 showing the address of both Mr Brunswick and Mrs Terry as of that date as Mrs Terry’s address (Exhibits A2 and A3); and
(f)the absence of evidence of a joint bank account as at 19 December 2015. The Tribunal is of the view that the existence of a joint account, or the date of its operation is not particularly determinative in the present analysis as many married couples do not have such accounts.
The Respondent’s SIFC points, somewhat generally, to the following factors as weighing in favour of a de facto relationship:
(a)the joint bank account held by Mrs Terry and the Applicant;
(b)Mrs Terry’s perception that her relationship of some years with the Applicant changed in nature when they commenced living together on 19 December 2015;
(c)the care provided by Mrs Terry to the Applicant in December 2015 in taking time off work to drive the Applicant to and from the hospital and staying overnight at the property he had for sale;
(d)the Applicant and Mrs Terry both held themselves out to be living in a de facto relationship as at 19 December 2015; and
(e)the Applicant’s temporary absences from Mrs Terry’s home for the purpose of undertaking his volunteer work, noting that he sometimes left the property he resided in with Mrs Terry early on the Sunday night or early Monday morning in time to prepare for his radio show at 11am.
In determining the date of the commencement of the de facto relationship, the Tribunal considers that the evidence related to Mrs Terry completing the pension claim form (T8/25), the declarations made by both Mrs Terry and Mr Brunswick in respect of that pension claim (T9/49), the contemporaneous evidence of the DVA file note (T10/50) and the evidence of Mrs Terry confirming the nature of her arrangements with Mr Brunswick in December 2015 in an email dated 21 May 2016 (T14), indicate very strongly that Mr Brunswick and Mrs Terry were in a de facto relationship from 19 December 2015.
Noting the factors listed by the Respondent at paragraph 41 above, the Tribunal finds that the following considerations support that strong indication:
(a)at 19 December 2015 Mr Brunswick and Mrs Terry were not legally married and were not in a prohibited relationship;
(b)Mr Brunswick and Mrs Terry had been in a relationship for a significant time prior to December 2015 when in Mr Brunswick’s words the relationship changed from a platonic to a “serious”, “in depth”, and “intimate” relationship. He told the Tribunal that in December 2015 he intended the relationship with Mrs Terry to continue indefinitely. Before the Tribunal, Mrs Terry said the “relationship changed from friends to a couple”;
(c)Mrs Terry told the Tribunal that her children knew about her relationship with Mr Brunswick because they had been on holidays together in October 2015 and again in 2016;
(d)Mr Brunswick and Mrs Terry socialised as a couple. Mr Brunswick told the Tribunal that his stays with Mrs Terry were not secret: “It was pretty obvious, my car was parked in the driveway”;
(e)the evidence from both Mr Brunswick and Mrs Terry that they provided emotional support to each other, and the support Mrs Terry provided to Mr Brunswick subsequent to his thumb operation in mid-December 2015. Mr Brunswick told the Tribunal that Mrs Terry stayed overnight with him in Collie on 18 and 19 December 2015 before returning to work in Mandurah; and
(f)the evidence is that there was some sharing of household duties such as making the bed and washing dishes. Relevant to any weighting resulting from this factor, the Tribunal notes and agrees with the Respondent’s closing comment that “they shared household duties in Mr Brunswick’s evidence at least. Mrs Terry may not have been so generous to Mr Brunswick in that respect.”
CONCLUSION
The Respondent seeks a decision, made in accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the reviewable decision dated 17 November 2016 is affirmed.
Having carefully considered all the evidence, the relevant circumstances of the relationship between Mr Brunswick and Mrs Terry including the matters listed in s 11A of the VEA, and the guidance provided in Pelka (see paragraph 28 above), the Tribunal is reasonably satisfied that Mr Brunswick and Mrs Terry entered into a de facto relationship on 19 December 2015.
It follows that the rate of service pension payable to Mr Brunswick was correctly calculated at the partnered rate with effect from 19 December 2015.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner

....[sgd]....................................................................
Associate
Dated: 26 July 2018

Date of hearing: 19 January 2018

Advocate for the Applicant: Reverend Dr Alan Stubbs

Representative for the Respondent: Mr Ashley Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 2564

26 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Intention

Date of hearing:	19 January 2018
Advocate for the Applicant:	Reverend Dr Alan Stubbs
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers