Catolico and Repatriation Commission (Veterans' entitlements) - [2022] AATA 274

Catolico and Repatriation Commission (Veterans' entitlements) [2022] AATA 274 (22 February 2022)
Division:VETERANS’ APPEALS DIVISION
File Number: 2020/0499
Re:Marissa Catolico
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:22 February 2022
Place:Brisbane

The decision under review is set aside and, in substitution, decides that Ms Marissa Catolico is a dependant as defined by s 11 of the Veterans’ Entitlements Act 1986.
.......................[SGD].................................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – was the veteran living with the Applicant – operation of deeming provision in s 5E(3) – whether Applicant and veteran were in a de-facto relationship – financial aspects of the relationship – social aspects of the relationship – sexual relations between the people – the nature of people’s commitment to each other – decision that Applicant not a dependant set aside
LEGISLATION
Social Security Act 1991 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
CASES
Alirezai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 655
Bruce and Secretary, Department of Social Security (1995) 39 ALD 473
Dietman and Repatriation Commission [2019] AATA 4428
Garner v Repatriation Commission (1998) 53 ALD 297
Jenkins v Repatriation Commission (1999) 56 ALD 379
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Reid and Secretary, Department of Social Security [1995] AATA 304
SRH and Secretary, Department of Social Security (1996) 42 ALD 463.
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Stuart and Secretary, Department of Social Security (1985) 9 ALN N38
REASONS FOR DECISION
Deputy President J Sosso
22 February 2022
INTRODUCTION

Ms Marissa Catolico (the Applicant) seeks a review of a decision of the Veterans’ Review Board (VRB) of 20 August 2019, which affirmed a decision of the Repatriation Commission (the Respondent) of 21 September 2018 rejecting her claim for a war widow’s pension as she was not a “dependant” as defined in s 11 of the Veterans’ Entitlement Act 1986 (Cth) (the Act) – Exhibit 1 T5 pp. 4 – 5.
It is not disputed that Mr Philip Sheehan (the veteran) was a “veteran”, as defined by s 5C of the Act, as he rendered eligible war service. Accordingly, if his death was war-caused, a pension is payable to his dependants under s 13 of the Act, and his dependants may make a claim under s 14 of the Act.
Section 11 lists five categories of persons who are deemed to be a “dependant”. The first category comprises persons who are a “partner” of a veteran.
Ms Catolico was born in the Philippines and first met the veteran in December 2005 when she was working in a restaurant in Manila – Transcript 29.11.2021 pp. 15 – 16. At that time, she had separated from her first husband and was raising two daughters who, at that time, were aged 8 and 12 years – Tr. 29.11.2021 p. 16 – 17.
The veteran was born in 1945 and served in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 274
Decision Date: 22 February 2022

CaseChat Overview and Summary

This matter concerned an appeal by Ms Marissa Catolico against a decision of the Repatriation Commission. The core dispute revolved around whether Ms Catolico was a "dependant" of a deceased veteran for the purposes of the *Veterans' Entitlements Act 1986* (Cth). The Federal Court of Australia, presided over by Deputy J Sosso P, was required to determine the nature of the relationship between Ms Catolico and the veteran.

The legal issues before the court were whether Ms Catolico and the veteran were living together in a marriage-like relationship, as defined by section 11A of the Act, and whether Ms Catolico qualified as a dependant under section 11 of the Act. This involved considering the operation of the deeming provision in section 5E(3) and assessing various indicia of their relationship, including financial, social, and sexual aspects, as well as the nature of their commitment to each other.

The court's reasoning focused on the interpretation of "living together in a marriage-like relationship" under section 11A. Deputy J Sosso P noted that while the veteran and Ms Catolico had a substantial commitment prior to 1973, the Tribunal was entitled to consider all circumstances, including their separation due to the veteran's illness and violent behaviour. The court found that the financial aspects of the relationship did not indicate a marriage-like arrangement, with no joint household responsibilities. Furthermore, the social and sexual aspects appeared to be non-existent at the relevant times. Despite the veteran regularly visiting and staying overnight with Ms Catolico after his mental health treatment, the court ultimately upheld the Tribunal's finding that the indicia of a marriage-like relationship were not met.

However, the decision under review was set aside. In substitution, the court determined that Ms Marissa Catolico was a dependant as defined by section 11 of the *Veterans' Entitlements Act 1986*.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In reaching this conclusion, the Tribunal has had regard to “all of the circumstances of the relationship” including the matters outlined in s 11A.DECISION The decision under review is set aside and, in substitution, decides that Ms Marissa Catolico is a dependant as defined by s 11 of the Veterans’ Entitlements Act 1986.

Ratio Decidendi

Legal Principle Established

In upholding the Tribunal’s determination that the parties were not in marriage-like relationship at the time of the veteran’s death, Tamberlin J made the following observations (301):“The indicia of ‘living together in a marriage-like relationship’ are set out in s 11A(a) – (e) inclusive. It is to be noted that s 11(A) requires regard to be had to all of the circumstances of the relationship and goes on to spell out a number of specific matters which must be taken into account. When considering ‘all of the circumstances of the relationship’ it was, of course, open to the tribunal to take account of the fact that the veteran and the applicant had been separated as a consequence of the veteran’s illness and the consequential violence and dysfunctional behaviour arising from it. It is clear that the illness and the separation are important matters to be taken into account…In the light of the specified considerations set out in s 11A, it seems to me that a strong case is shown on the evidence for the view that there was no marriage-like relationship at the relevant times…More specifically, a consideration of the financial aspects of the relationship at the relevant times would not indicate a marriage-like relationship. There was no joint household responsibility for living arrangement or housework. The social and sexual aspects of the relationship, at the relevant times, appear to have been non-existent. Although there had been a substantial commitment between the parties for the period prior to 1973, it was open to the tribunal to find on the material, that the various matters set out in s 11A had not been made out.”(emphasis in the original)CONSIDERATIONWas the veteran living with the Applicant for the purposes of s 5E(2)(b)(i) The evidence discloses that the veteran and the Applicant both lived in different premises after their separation. However, the evidence also discloses that from 2016, the veteran regularly visited the Applicant, and stayed overnight regularly. This pattern of behaviour became more regular and of longer duration following the veteran undergoing mental health treatment at the Greenslopes Private Hospital. This is dealt with in greater detail below. It would appear that the veteran was traumatised by his experiences whilst serving in South Vietnam. There is material before the Tribunal which discloses that the veteran was involved in a violent incident in South Vietnam which led to the death of at least one civilian. This incident had an ongoing deleterious impact on the veteran’s mental state. During his service, and following his discharge from the Army, the veteran was involved in altercations, and he became increasing private and isolated from the broader community. He ceased working full-time when he was only 44 years of age. A social worker, Ms Kaaren McSorley, in a report dated 12 January 2017, made these observations of the veteran’s anger management history – Exhibit 12:“Previously in trouble with the Military police. Multiple altercations with physical violence. Previous assault charged by Police. Drink driving.”