Catolico and Repatriation Commission (Veterans' entitlements)
[2022] AATA 274
•22 February 2022
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 Australian Army as a Corporal in South Vietnam between 1 April 1966 – 16 April 1967 – Exhibit 1 p. 1, T6 pp. 6 – 8, T10 p. 49.
On 12 November 1984, his “anxiety state” was accepted as being war-caused – Exhibit 1 p. 1.
After meeting Ms Catolico, the veteran commenced living with her and her two daughters in an apartment in Manila. Ms Catolico testified that the veteran was living with her and her daughters as family, and he paid for food and living expenses – Tr. 29.11.2021 pp. 17 – 18.
In 2009, Ms Catolico gave birth to her son Matthew in the Philippines and, in 2011, moved to Australia permanently with her three children – Tr. 29.11.2021 p. 19.
In the period 2005 – 2011, Ms Catolico was living with the veteran and visited Australia for lengthy periods. It would appear that Ms Catolico lived with the veteran in his home at Yarraman and did not work. In 2011, Ms Catolico and her children moved permanently to Australia and lived with the veteran. Ms Catalico stayed at home and cared for her children and the veteran – Tr. 29.11.2021 p. 20. Again, Ms Catolico testified that the veteran paid for “everything” and her daughters regarded him as their “daddy”. According to Ms Catolico, the veteran got along well with her daughters and he used to buy them birthday and Christmas presents – Tr. 29.11.2021 p. 21.
Ms Catolico was totally financially dependent on the veteran and did not have her own bank accounts – Tr. 29.11.2021 p. 21.
The veteran and Ms Catolico shared the same bedroom and had a sexual relationship. According to Ms Catolico, the veteran regarded her as his wife and this view was shared by friends and associates, as well as the veteran’s sister – Tr. 29.11.2021 p. 22.
Ms Catolico cooked meals for the veteran which they shared, and she did all of the housework, including washing and ironing. Further, Ms Catolico never went out socially by herself and always accompanied the veteran, including exercising together – Tr. 29.11.2021 p. 24.
However, there were problems with the relationship. Ms Catolico described the veteran as being “grumpy”, and these mood swings were often brought about by his aversion to noise. The following exchange occurred at the Hearing – Tr. 29.11.2021 pp. 24 - 25:
“INTERPRETER: Okay. When we come back to Australia with my children, I think he found that the house is a bit noisy, it’s like an army and he’s feeling a bit traumatised and he’s grumpy.
DEPUTY PRESIDENT: He didn’t like noise, is that right?
INTERPRETER: Because my son cries a lot but my boyfriend, or the father…get problem with the ear, tinnitus and it is affecting him the noise constantly.
…
INTERPRETER: Yes. Okay, he told me, he explained to me that if I heard someone noisy, screaming as if someone is banging a hammer on my ear.
DEPUTY PRESIDENT: Did he ever hit you?
WITNESS: No
…
DEPUTY PRESIDENT: Angry?
INTERPRETER: Yes. He’s just very agitated and his face is so red, his eyes are red as if he wants to do something, but I leave him alone, I go out.
DEPUTY PRESIDENT: Were you scared of him when he was like that?
WITNESS: Yes.”
In 2015, the family moved from Yarraman to Morayfield. According to Ms Catolico, relations with the veteran got worse and she testified that “he couldn’t control himself, he’s getting angry.” She went on to testify that she was “trying to protect my children, because he’s getting angry a lot.” The reason given for the veteran’s increasing anger was as follows – Tr. 29.22.2021 p. 26:
“INTERPRETER: He get addicted to buying stuff online and when he bought a telescope but the problem is he pays and he never receive the telescope and he’s getting very angry. It affected the whole family when he’s angry.”
In March 2015, Ms Catolico and all three children left the family home and obtained emergency housing. There was no contact between the veteran and Ms Catolico for three weeks – Tr. 29.22.2021 p. 27.
The Tribunal has been provided with “MINUTES OF CONSENT on a FINAL BASIS”, filed in the Federal Circuit Court of Queensland and dated 23 October 2015, which outlines details of the shared parental responsibility for Matthew Sheehan – Exhibit 11. Clause 20 of the Minutes provides as follows:
“That the Father attend his general practitioner and obtain a referral to a counsellor or psychologist to receive ongoing therapy in relation to his anxiety, anger and PTSD and follow the recommendations of the said counsellor or psychologist.”
At the Hearing, the Applicant required the services of an interpreter, and her relatively poor grasp of the English language is reflected in Clause 31 of the Minutes:
“It is recommended that the Mother engages in English language speaking classes and avail herself of material in relation to Australian culture.”
In response to Questions posed by Centrelink in February 2021, the Applicant provided this information regarding her English language proficiency and the implications it had for her – Exhibit 11:
“My English language was limited so I relied heavily on others to help me. Not only was I unable to communicate effectively in English but struggled knowing how to speak out as I did not understand my rights within Australia, nor was speaking out, a part of the culture I was born into. I [was] heavily reliant on my partner Phillip Sheehan who was not fluent in my Filipino language.”
At some later time, the veteran made contact with one of Ms Catolico’s daughters, and following that, communications resumed between the veteran and Ms Catolico – Tr. 29.11.2021 p. 33.
The veteran asked Ms Catolico and the children to return; however, she testified that she didn’t as she was scared of him – Tr. 29.11.2021 p. 27. According to Ms Catolico, the veteran said: “Love come home, come back” – Tr. 29.11.2021 p. 28.
Ms Catolico testified that she said she would some back “when you’re okay” – Tr. 29.11.2021 p. 28. Her reluctance is understandable as it would appear the breakdown of the family in 2015 was acrimonious, and reference was made to a court custody hearing where issues of domestic violence were raised – Tr. 29.11.2021 p. 33.
Ms Catolico and her children moved to rented premises in Moorooka in 2016, while the veteran remained living at Morayfield until September 2016 and, after that, Blackbutt – Tr. 29.11.2021 pp. 30, 32. However, the veteran was attending Greenslopes Private Hospital and receiving psychiatric treatment for PTSD. The veteran would visit Ms Catolico at her Moorooka home on a daily basis and asked her to return to him. He would often sleep overnight, and Ms Catolico resumed a sexual relationship with him. The veteran would have meals with Ms Catolico and the children, and she would wash and iron his clothes – Tr. 29.11.2021 pp. 29 – 30. Ms Catolico testified as follows – Tr. 29.11.2021 p. 31:
“INTERPRETER: Okay. When I move out in Moorooka, he kept visiting us there. He sleeps there all the time. It’s as if he’s just living there.”
According to Ms Catolico, her relationship with the veteran improved to the point that, by September 2016, they were discussing moving back together and getting married – Tr. 29.11.2021 p. 34. Whilst being treated for PTSD, the veteran also received anger management treatment and, according to Ms Catolico, it was helpful. Ms Catolico gave the following testimony – Tr. 29.11.2021 pp. 34 – 35:
“WITNESS: No, because I not feel good with Phillip, no one look after to, and then I have older son, Phillip, I want Phillip with him.
INTEPRETER: She said that when she found out that Phillip got a problem, I don’t feel good with myself that he’s alone, I wanted to help him, I wanted to be with him to care for him.”
The Tribunal has been provided with the Clinical Notes of the Greenslopes Private Hospital Psychiatric Clinic. The Notes confirm that the veteran was referred to the anger management group. The Notes of 13 September 2016 are as follows – Exhibit 12:
“Phillip has attended first 2 sessions & participated well in gp. Philllip was in the severe range for depressive symptoms & the extremely severe range for anxiety & stress. On the STAXI-2, Phillip was in moderate range for state anger & the high range (>75th percentile) for trait anger. Phillip tends to express his anger outwardly…”
The Clinical Notes disclose that the veteran was treated for anger management over a period of a few months. Ms Justine Evans, Clinical Psychologist, made the following report on the veteran’s progress – Exhibit 12:
“Phillip Sheehan completed the Anger Management Group Program which ran from August 2016 to October 2016. He attended 8 out of 8 sessions. Phillip was motivated to attend and was an engaged group participant who was eager to engage in group discussions. He formed good relationships with other group members. Phillip was appropriately engaged in the group and willing to share personal difficulties… He reported that he had become calmer and less irritable in his parenting style with his young son. Phillip was open to feedback and willingly engaged in group discussion without prompts…
The scores on the DASS-21 indicated that depressive symptoms increased to the extremely severe range. Anxiety symptoms remained in the extremely severe range. Stress symptoms reduced from the extremely severe to the severe range. These results are in contrast to self-reported improvements and it may be useful to follow up and clarify with Phillip during individual psychiatry sessions. Phillip was more irritable in the final session accounting for an increase in state anger levels. Phillip self-reported that he has a tendency to be defensive and express anger through verbal aggression. He also tried to actively suppress irritability and anger…”
It is, then, tolerably clear to the Tribunal that the veteran was still, in the period 2016 - 2017, suffering from depression, anxiety and stress, and was struggling to control his anger.
Ms Catolico testified that the veteran proposed to her and gave her an engagement ring in 2014, while they were living at Morayfield – Tr. 29.11.2021 p. 41. She also testified that, although she had been married in the Philippines, her marriage had been annulled – Tr. 29.11.2021 p. 35.
As previously noted, the veteran passed away on 29 April 2017. The cause of death on his Death Certificate was – Exhibit 1 T9 p. 47:
“(a) Myocardial infarction (b) Coronary artery disease (c) Hypertension”.
The Death Certificate notes that the veteran was never married, and that he passed away at his Blackbutt home.
On 21 September 2018, a Delegate of the Respondent determined that Ms Catolico was not entitled to a pension under the Act because she was not a “dependant”. The Delegate provided the following reasons – Exhibit 1 T5 pp. 4 – 5:
“The evidence available to the Department is that you and the late Philip Sheehan were not living in a relationship that was one of husband and wife.
This means that you are not regarded as his dependant.
Because of this you are not entitled to claim a pension under the Act.”
The VRB upheld this decision, and provided the following reasons – Exhibit 1 T2 B2:
“Having considered all of the evidence provided by you, your advocate and the Commission we have concluded that you do not qualify as the dependant of the late Mr Sheehan as defined in the VEA. After reviewing the departmental report we could not be satisfied that your relationship with the late Mr Sheehan could be classed as a defacto marriage. There was no documentation signed by Mr Sheehan stating that he considered your relationship to be a defacto marriage, or in the nature of his commitment to you after your separation in 2015.
Using the criteria listed in section 11A of the VEA as a guide, there was nothing presented to indicate formal and ongoing financial aspects of the relationship and we noted that Mr Sheehan’s Will does not record you as a beneficiary. It appears you and the late Mr Sheehan did not maintain a household together but were living in separate locations.
While you stated that Mr Sheehan and you were making plans for the future, his Will does not indicate this, and there is nothing presented to indicate that you and Mr Sheehan engaged in joint social activities unrelated to his engagement with his son.
As we are not satisfied that the nature of your relationship with the late Mr Sheehan could be considered a defacto marriage, we find that you do not meet the requirements of section 11 of the VEA relating to a dependant. Accordingly, you are not entitled to claim a pension as a result of Mr Sheehan’s death because you are not a dependant of his as defined in the VEA.”
THE HEARING
A Hearing was convened in Brisbane on 29 November 2021. The parties appeared in person.
The Applicant was represented by Ms Kerri Paterson of Legacy Brisbane, and the Respondent by Mr Bruce Williams.
The Applicant appeared in person, gave evidence and was cross-examined by Mr Williams. No other persons were called to give evidence.
The Applicant was assisted by a Tagalog interpreter.
THE LAW
The term “partner” is defined by s 5E(1) to mean “in relation to a person who is a member of a couple, means the other member of the couple.”
Subsection 5E(2) of the Act provides that a person is a “member of a couple” 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 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.”
It will be seen that s 5E(2) contains three “tests” by which a person is deemed to be a member of a couple. In this matter, it is the third test that is apposite; namely, persons who are in a de-facto relationship.
Subparagraph 5E(2)(b) mandates four conditions, all of which must be met.
It will be noted that s 5E(2)(b)(i) requires that “the person is living with another person”. This term is explained in s 5E(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 being living together during that period.”
In forming an opinion, for the purposes of the Act, of whether people are living together in a de-facto relationship, regard must be had to the circumstances prescribed by s 11A:
“(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 and 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;
(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.”
Subsection 4(3) of the Social Security Act 1991 (Cth) is drafted in almost identical terms, and the jurisprudence on this (and related comparable) provision is of assistance when properly applying s 11A.
Reference can be made, firstly, to the judgment of O’Loughlin J in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
In that case, Mrs Staunton-Smith had three children from her first marriage, including a young child requiring full care and attention. Mrs Staunton-Smith ’s second marriage to Mr Staunton-Smith only lasted eight months and they then separated. Eight years later, Mrs Staunton-Smith returned to live in Mr Staunton-Smith’s house as a matter of convenience, and because Mr Staunton-Smith assisted in caring for the disabled child. The evidence disclosed that there was no sexual relationship between the parties, and they went out together only occasionally. They would often sit and watch television together at night. Mrs Staunton-Smith made no substantial contribution towards household expenses, and they jointly owned a boat and a car.
His Honour Justice O’Loughlin, first, dealt with the fact that the parties were sharing accommodation and one was financially dependent on the other, and observed (at 173):
“I am of the opinion that it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper and find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship. For example, in arriving at its decision, the Tribunal regarded it as a matter of significance that there was a supportive relationship existing between Mr and Mrs Staunton-Smith. I agree that normally would be an indicator pointing to the conclusion that the parties were not living separately and apart. But in the particular circumstances of this case, did the Tribunal accept the evidence of both Mr and Mrs Staunton-Smith that during the period of their separation, he would, on occasions, stay at her home and care for her and her children when she was sick or in hospital?”
Later, his Honour made the following observation (at 175):
“…the composition of the marital relationship for each couple varies from case to case. This accords with the views that this Court and the Tribunal have expressed when considering various provisions of the Social Security Act: in every case it will be necessary to have regard to the particular circumstances of the people whose lives and lifestyles will be affected by the decision of the Department; it is wholly inappropriate to fall back on standards, conventions or ‘role-models’.”
O’Loughlin J then set out the various factors that required consideration and the error that the Tribunal had fallen into (at 176 – 177):
“Putting to one side the failure to address the question of living separately and apart, the Tribunal’s decision, as stated in par 22 of its reasons, was that ‘the applicant and Mr Staunton-Smith are residing under the same roof on a bona fide domestic basis’. The findings on material questions of fact that the Tribunal made in coming to that decision were:
1)the totality of the relationship;
2)the existence of a domestic relationship which was initiated by the applicant;
3)the applicant’s desperate need of shelter and assistance in caring for her son;
4)the supportive nature of the relationship ‘based on some financial, domestic and interpersonal co-operation’;
5)the parties’ commitment to each other;
6)the comfort and support derived by the applicant from living under the same roof as Mr Staunton-Smith to whom she is still legally married;
7)neither party having a strong desire to end their ‘current situation’ and ‘their lifestyle’ being ‘similar to that of man and wife’; and
8)their strong and mutual concern for Phillip.
Each of those matters was a proper subject or facet of the relationship to be taken into account as part of the total picture. Furthermore, there was evidence before the Tribunal, most, if not all, of which was referred to, that permitted it to make each such finding. Thus it could not be said that the Tribunal was manifestly unreasonable because of it taking into account matters that were wholly irrelevant. The problem lies in the opposite direction. Did the Tribunal have any, and if so what, regard to the following claims:
1)That there was no sexual relationship;
2)That there was virtually no social relationship;
3)That the parties did not hold themselves out as being married;
4)That the parties did not regard themselves as man and wife;
5)That the applicant’s financial dependence on Mr Staunton-Smith was not a voluntary relationship borne out of love, friendship or concern; it resulted directly from the withdrawal by the Department of her social welfare benefits;
6)That his willingness to care for her did not occur solely as a result of their living under the same roof as from March 1989 – there was evidence of similar conduct prior to that date when they were living separately and apart?”
Reference can next be made to the decision of French J (as he then was) in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
Ms Pelka received carer payments between July 2000 and March 2003 at the single person rate. The Department of Family and Community Services subsequently determined that, during that time, she had been living in a marriage-like relationship with Mr Kuhl, with whom she shared her apartment.
Ms Pelka had separated from her husband in 1986, and finally divorced him in 2003. In 1985, she met Mr Kuhl, and in accordance with Chinese culture, they became god-brother and god-sister.
In 1988, Ms Pelka purchased a two bedroom apartment and Mr Kuhl house-sat it whilst she travelled overseas for an extended holiday. On her return, Mr Kuhl remained in the apartment, as he had nowhere else to go, until 2004, and resided in a spare room. In exchange for paying no rent, Mr Kuhl would pay the cost of Ms Pelka’s airfares and accommodation when she travelled overseas. During this time, Ms Pelka paid off the mortgage on her apartment, whilst Mr Kuhl paid for the telephone, electricity and gas bills.
Ms Pelka stated that she did not have a sexual relationship with Mr Kuhl, they did their own washing, and she provided food for him when she cooked more than she needed.
Ms Pelka and Mr Kuhl travelled overseas approximately once per year and booked a twin share hotel apartment in order to save money. Ms Pelka paid for her own shopping trips.
Ms Pelka and Mr Kuhl did not have joint bank accounts and would occasionally go to the movies. Ms Pelka did not tell her friends she was in a relationship with Mr Kuhl. They lived separate lives and days would go by without seeing each other. Ms Pelka took no notice of Mr Kuhl’s private life, and it was a matter of convenience that they lived in the same apartment.
Ms Pelka stated that she did not pool resources with Mr Kuhl, except when they were on holidays, and she did not know she was the beneficiary of his Will, superannuation and life insurance policies.
Mr Kuhl said the relationship was “separate and apart”, that he didn’t tell Ms Pelka what he was doing and would often stay away with lady friends. He agreed that he had never had sex with Ms Pelka and did his own cleaning.
Ms Pelka had cared for Mr Whittaker since 2000, and had been away with him on a number of business trips, including a three month trip around Australia. When Ms Pelka moved into the house of Mr Whittaker, she cared for him and received carer payments. In the three years (2000 – 2003) she received the carer payments, she did so at the rate of a single person.
In 2003, the Department decided that she had, in fact, been living in a marriage-like relationship with Mr Kuhl since, at least, 2000.
Of significance in this matter was the consideration of what appears in s 11A(a)(ii), namely the pooling of financial resources.
French J gave general guidance on the correct approach to resolving the questions posed by s 11A – (at [46]):
“Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1)Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2)Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people; and
(e) the nature of the people’s commitment to each other.
3)In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4)Must specifically consider the total picture of the relationship created by all of those 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.
5)Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements; or
(d) mutual commitment.”
French J went on to decide (at [51]) that the matters set out in s 4(3)(a), which is the equivalent of s 11A(a), were not exhaustive of the financial aspects of a relationship which can be taken into account. It logically follows from this, that the same finding can be made about 11A(b), the nature of the household, s 11A(c), the social aspects of the relationship and s 11A(e), the nature of the people’s commitment to each other. In short, the matters outlined in s 11A provide specific guidance for a decision-maker to factor into a decision whether there exists a de-facto relationship, but those matters, though providing specific guidance, are not exhaustive of the matters that a decision-maker can, and should, take into account depending on the factual matrix in a particular case.
French J then went on to determine what constituted “pooling” for the purposes of s 11A(a)(ii) (at [52]):
“…It plainly involves something more than financial cooperation or separate contributions to different elements of household expense. The so-called ‘barter system’ did not constitute a pooling of financial resources in that sense. If Mr Kuhl paid for or contributed to overseas travel for Ms Pelka instead of paying rent, that is not a ‘pooling of financial resources’ any more than his payment of rent would be so described.
His Honour then went on to deal with some of the household considerations (at [54]):
“The Tribunal’s findings on the nature of the household arrangements between Ms Pelka and Mr Kuhl can be measured against the non-exhaustive matters identified in s 4(3)(b). That is to say:
1)There was no question of any joint responsibility for providing care or support of children.
2)The living arrangements involved separate bedrooms and a common kitchen, lounge and bathroom. Ms Pelka and Mr Kuhl each owned their own bedroom furniture and Mr Kuhl supplied most of the lounge room furniture.
3)Ms Pelka did more housework than Mr Kuhl and they occasionally ate together when she cooked more than she needed for herself.
These findings were not disputed. It was submitted however, on behalf of Ms Pelka, that they were not consistent with a ‘marriage-like relationship’ and did not support the Tribunal’s overall conclusion. I agree with that proposition.”
Mr Williams drew the Tribunal’s attention to a number of decisions dealing, inter alia, with the question of whether persons meet the requirement of s 5E(2)(b)(i) and (iii). Reference can be made, firstly, to Jenkins v Repatriation Commission (1999) 56 ALD 379 (Jenkins).
In that matter, Ms Jenkins’ claim for a widow’s pension was refused because it was determined that she was not a dependant of her deceased ex-husband. Ms Jenkins married her ex-husband in 1942; however, Mr Jenkins suffered from Huntingdon’s disease which caused a change in his personality involving rage, depression and violence towards Ms Jenkins. In 1979, the couple were divorced because Ms Jenkins believed she could obtain a property settlement and prevent her husband from dissipating their assets. Due to his violence, Ms Jenkins had no contact with her ex-husband from the time of their separation in circa 1968 until his death in 1982. However, Ms Jenkins continued to provide financial and other support for him.
The Tribunal found that Ms Jenkins was not in a marriage-like relationship with Mr Jenkins at the time of his death.
Hely J upheld the Tribunal’s determination and observed that reciprocity is an important element of a marriage-like relationship. This involved mutuality of commitment, and the requirements of s 11A involve consideration of whether the particular relationship has mutual or reciprocal elements which are regarded by the Parliament as characteristics of a marriage-like relationship.
Mr Williams also drew the Tribunal’s attention to the judgment of Tamberlin J in Garner v Repatriation Commission (1998) 53 ALD 297 (Garner).
In that matter, Ms Garner was in a marriage-like relationship with Mr Garner between 1964 and 1973 and they had two children. In 1973, Ms Garner left the home she shared with Mr Garner as he was suffering from Korsakoff’s psychosis and became violent under the influence of alcohol. After 1973, Mr Garner visited Ms Garner and his children two or three times, and on one occasion, gave Ms Garner $40. After falling ill, Mr Garner lived with Ms Garner for 10 months. Subsequently, Mr Garner was admitted to a nursing home and his sister cared for him until his death in 1987.
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)
CONSIDERATION
Was 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.”
In the Post Traumatic Stress Disorder Programme Discharge Summary of 6 April 2017, prepared by Dr JN Gibson of the Greenslopes Private Hospital, the following information about the veteran’s trauma events was provided – Exhibit 12:
“Phil reported a history of multiple trauma events throughout his childhood…and adult life. As part of the CPT [Cognitive Processing Therapy] framework Phil identified an event during his service in Vietnam that was the focus of the exposure exercises. This event involved the death of civilians after being ambushed. Through the process of CPT Phil was able to identify stuck points related to trust, authority and intimacy which had impacted negatively on relationships with family, friends and colleagues. Phil reported that he had benefited from the overall program and his individual sessions. He appeared to have benefited most significantly in improvement of depressive symptoms and emotional numbing.”
The Applicant outlined, in her testimony, the difficulties she and her family faced when living full-time with the veteran. He responded negatively to noise and found it difficult to live in a house with active and boisterous children.
The veteran’s sister, Ms Lynette Lear, deposed as follows – Exhibit 5:
“…I knew very well of Phillip’s anger, his outbursts and the many physical fights. I believe Phillip knew how volatile he was and why he chose to keep his distance from Marissa, PJ and her two daughters. I believe Phillip moving to Blackbutt from Caboolture was better for him, as it was a much quieter environment.”
A family friend, Ms Salvacion Matthews, likewise deposed – Exhibit 6:
“When Marissa got back with Phillip in 2016 she did not know what to do as Phillip had always been cranky with her – this is the reason why they lived separately and did not move in together.”
As will be discussed at greater length below, the veteran was suffering from depression and anxiety, and enrolled in an anger management group program at the Greenslopes Private Hospital in late 2016. Ms Justine Evans, Clinical Psychologist, opined in a note about the veteran – Exhibit 12:
“The scores on the DASS-21 indicated that depressive symptoms increased to the extremely severe range. Anxiety symptoms remained in the extremely severe range. Stress symptoms reduced from the extremely severe to the severe range.”
As outlined below, the veteran loved his family and was taking positive steps, in the time leading up to his unexpected death, to improve his mental condition such that he could resume living on a full-time basis with the Applicant and their son. Clearly, the veteran was suffering from significant mental health issues, and these mental health issues has resulted in the initial separation in 2015 and posed ongoing problems.
Subsection 5E(3) deems a person as living with another person, inter alia, during an absence resulting from illness or infirmity.
Tamerlin J explained this subsection in Garner as follows (at 299):
“The subsection set out above is described as a ‘deeming’ provision. It operates to require a matter to be assumed even if the factual position is otherwise.”
In this matter, the evidence present suggests that when the veteran was physically and mentally able, he resided with the Applicant in her Moorooka unit, and whilst in her home, engaged in a marriage-like relationship (which is explained below). Unfortunately, the nature of the veteran’s mental health issues precluded him from living with the Applicant permanently. However, he was taking positive steps to obtain targeted mental health treatment such that his anxiety, stress and depression could be managed, and he could resume living with the Applicant permanently.
This matter can be contrasted with the factual matrix in Garner. In that matter, the marriage-like relationship ceased in 1973 and, at no time up until Mr Garner’s death in 1987, was there any likelihood of the relationship being re-established. Mr Garner did come to the family home for ten months where he recuperated, but a marriage-like relationship was not resumed.
Likewise, this matter can also be contrasted with Jenkins. In that matter, the parties separated before 1976 and divorced in 1979. Due to Mr Jenkins’ mental illness, Ms Jenkins had no physical contact with him from the time of the separation until his death. Although Ms Jenkins cared for her ex-husband and assisted him financially, due to his violent outbursts, she made no personal contact with him. Hely J made the following observations (at [22] – [24]):
“The applicant contends that it was not open on the evidence before the AAT, for the AAT to form any view other than: the sole explanation for the absence of the applicant from the joint relationship which previously existed was because the veteran had become seriously affected by Huntington's disease; and but for that absence, the applicant and the veteran would have been living together in the period prior to the veteran's death.
The AAT appears to accept the applicant's evidence generally and that the applicant was absent from the family home due to the illness of the veteran. But it does not follow from that finding that the AAT was bound to reach the second of the conclusions for which the applicant contends.
Whether the applicant would, but for absence resulting from illness, have been living with the veteran at the time of his death involves an assessment of the probabilities taking account of the vicissitudes of life. The applicant's evidence as to her hopes or expectations cannot necessarily be determinative of the question.”
In this matter, there was a separation of the parties in 2015, but they resumed a marriage-like relationship in 2016, and this continued until the veteran’s death in 2017. To paraphrase Hely J, an assessment of the probabilities in this matter, based on the evidence presented, strongly suggests that, but for the veteran’s mental illness, he would have been living with the Applicant on a permanent basis. This conclusion is not based on the emotional attachment of the Applicant for the veteran, or on her hopes or expectations, but on the oft-expressed desire of the veteran to be with the Applicant and their son, and his attempts, near the end of his life, to get medical help so that his hopes of permanent reconciliation could be given effect to.
The evidence presented is sufficient for the Tribunal to be reasonably satisfied that the veteran was living with the Applicant for the purposes of s 5E(2)(b)(i) at the time of his death.
Was the veteran and the Applicant in a de-facto relationship?
Introduction
As explained by French J in Pelka, the Tribunal is required to have regard to the interpersonal relationship of the veteran and the Applicant as a whole, and is not limited to the circumstances outlined in s 11A.
Section 11A requires the Tribunal to have regard to “all the circumstances of the relationship including, in particular, the following matters…” In short, the “following matters”, namely, those outlined in paragraphs (a) – (e), must be considered but the Tribunal can consider other matters where those other matters are relevant to the determination.
The Tribunal is required to engage in a weighing exercise, and, accordingly, to carefully weigh each of those factors that point to the existence of a de-facto relationship against those factors that do not. In reaching a conclusion, the Tribunal must consider all of the evidence presented, and appropriately evaluate objective as well as subjective considerations.
Mr Williams submitted (Respondent’s Closing Submission (RCS) p. 16 para 3.13) that the existence, or otherwise, of a de-facto relationship is to be assessed as the time of death of a veteran. In support of that submission, Mr Williams referred the Tribunal to Garner at 301. The Tribunal accepts that, in the normal course, the existence of a de-facto relationship is to be determined at, or around, the time of death of a veteran. There may be, of course, factors that could point to an earlier time, but that would be the exception to the rule.
The Tribunal will, accordingly, consider the following five broad areas as contained in s 11A:
(a)the financial aspects of the relationship;
(b)the nature of the household;
(c)the social aspects of the relationship;
(d)any sexual relationship between the people; and
(e)the nature of the people’s commitment to each other.
(a) Financial aspects of the relationship
(i) Joint ownership and joint liabilities
It is not disputed that the Applicant and the veteran did not jointly own any real estate or any other major assets.
(ii) Significant pooling of financial resources
As French J explained in Pelka (at [52]), pooling requires something more than financial cooperation or separate contributions to different elements of household expenses.
It is not disputed that there was no intermingling, let alone pooling, of the veteran’s finances with those of the Applicant.
(iii) Any legal obligations owed by one person in respect of the other person
No evidence was presented that there were any legal obligations owed by the veteran in respect of the Applicant or vice versa.
(iv) Sharing of day-to-day household expenses
In her statement to Centrelink of 24 February 2021, the Applicant said – Exhibit 11:
‘Before the Federal Court Order Phillip gave me $300.00 cash a fortnight. Phillip started providing cash again in the last six months till his passing – this was on top of any money transferred into my bank account. Phillip always provided financial support to help both myself, Matthew and his sisters. Phillip stated that he did not want to lose his DVA benefits and why he continually stated was not living in a de-facto relationship. Phillip also encouraged me to apply for a sole parent pension as he wanted to maximise income and another reason to state why were not living in a de-facto relationship. I now understand this was not right and suffer, yet again, another sense of loss and grief over not understanding my rights.”
The Applicant stated that the veteran paid the bond on the Moorooka flat the Applicant moved into, and “would often give me cash as he did not want DVA or Centrelink to find out” – Exhibit 11. Some support for the Applicant’s claim that the veteran paid the rental bond on the Moorooka flat comes from a statement of 2 July 2018 from a family friend, Mr Raymond Gregory. Mr Gregory stated – Exhibit 1 T11 p. 58:
“Phil provided a lot of support to Marissa + PJ (son) financially he told me he gave money to Marissa for rent + bond for place she was renting in Moorooka.”
The Suncorp Bank transaction details of the Applicant’s account disclose that the veteran deposited the following amounts – Exhibit 1 T15 pp. 70 – 82, Exhibit 11:
(a) 15 January 2016 - $215;
(b)9 February 2016 - $292;
(c)18 March 2016 - $250; and
(d)28 April 2016 - $200.
It is also the case that the veteran provided financial assistance to the Applicant when she and their son visited the Philippines between December 2016 and January 2017.
After the veteran died, the Applicant suffered financial distress, which resulted in her having to leave her rented Moorooka unit. In a statement dated 13 October 2021, Ms Lucy Miller, Case Worker with Kyabra Community Association Inc., provided the following information – Exhibit 4:
“…Marissa started accessing support from Kyabra Community Association on 27th November 2018.
Our records show Marissa presented and advised she was living in a boarding house for Filipino community from 8/08/2017 to 11/12/2018 and this was unsuitable for her and her son to remain living in…Marissa advised she had to move into the boarding house, as she was unable to maintain rental payments of their private accommodation in Moorooka following the loss of her Veteran partner in 2017.
Marissa is currently being supported by Kyabra Community Association’s Supported Accommodation Service. This service provides crisis accommodation to individuals/families that are homeless or at significant risk of homelessness. Marissa and her family have identified with this and we have been able to provide accommodation to support this immediate need since 18th December 2018…”
It is tolerably clear to the Tribunal that the immediate effect of the veteran’s death was to deprive the Applicant of income support, and this loss resulted in her being unable to afford the rent on her Moorooka unit. The following exchange occurred during the Hearing – Tr. 29.11.2021 p. 73:
“MS PATTERSON: So the question that – the direct question that I want to ask you is that following Phillip’s death how did the loss of income, the money provided, how did that impact you? How is that impacting you on a daily basis?
INTERPRETER: It’s very, you know, very hard. Very hard that I don’t have income.”
The Applicant also testified that the veteran gave her money on a regular basis after they reunited in 2016 – Tr. 29.11.2016 pp. 36 – 37:
“MS PATTERSON: So with regards to you two as a couple, did Phillip ask you to get your own pension?
WITNESS: He said to me much better that way because my – your pension is---
INTERPRETER: Yes, he mentioned to me that could get some pension because it’s not enough what he’s earning, it’s not big enough, yes.
MS PATTERSON: So he was worried about losing his pension?
WITNESS: Yes.
MS PATTERSON: And so when Phillip gave you money, how did he give you money?
...
MS PATTERSON: He never deposited it in your bank account?
INTERPRETER: He told me he doesn’t want to go to court, he just gave me cash money.
MS PATTERSON: So when you are worried about having to pay bills, what – did you ask Phillip?
WITNESS: Yes.
MS PATTERSON: And what did he say?
WITNESS: Yes, no worries. I give you.
MS PATTERSON: So he always gave you money. Was there ever a ‘No’, was there ever a problem with that?
WITNESS: No. All the time.
MS PATTERSON: So he was very generous?
WITNESS: Yes. Yes.
INTERPRETER: Yes. No problem with paying the bill. He gave me the money.
MS PATTERSON: And did Phillip give you any of his ATM cards?
WITNESS: Yes.
MS PATTERSON: So what did – how did you use those?
WITNESS: But I’m not using, but because I’m scared to…
INTERPRETER: Okay. I don’t use the ATM card because it’s not good to use it, but he accompanied me and we do it together. He was with me when I use it…”
Mr Williams submitted (RCS p. 15 para 3.15) that it was unclear from the material that there was a commitment to sharing of expenses beyond meeting the expenses of their son.
The material before the Tribunal, however, suggests that the veteran was a generous provider of income to the Applicant in the time leading up to his death. It would appear that apart from occasionally transferring money into the Applicant’s Suncorp Account, the veteran gave her money on a regular basis for household, travel, rental and related expenses. The money was not focused purely on their son, but was intended to provide general support for the Applicant and her children. The full extent of the veteran’s generosity is clear because, in the months after his death, the Applicant was unable to afford to remain in her unit and was forced to reside in a boarding house for the Filipino community.
(b) The nature of the household
(i) Joint responsibility for care of children
The formal legal arrangements for the care of Matthew Sheehan is contained in the MINUTES OF CONSENT on a FINAL BASIS, which has been referred to previously.
Clause 3 of the Minutes provided that from the commencement of the 2016 school year, Matthew would live with the Applicant and spend time with the veteran at all times as agreed, but failing agreement, on each alternate weekend from after school on Friday to 5pm on Sunday commencing 29 January 2016. Provision was also made for school holidays (cl. 4) and special occasions (cl. 5 – 9).
The evidence presented points to the veteran being a devoted father to his son Matthew, and also being very close to the Applicant’s two daughters.
In her Statutory Declaration deposed on 11 October 2021, Ms Lear, made these observations about her brother’s relationship with the Applicant’s children – Exhibit 5:
“Phillip told me he would leave Blackbutt early on a Friday so he could spend the day with his family, he was very devoted to Marissa, PJ (Matthew), Marion and Manette [Marissa’s two daughters]. Phillip knew PJ would attend school allowing him time alone to spend with Marissa. Phil loved both Manette and Marion like his own daughters, they referred to Phil as ‘Daddy Phil’. Manette read a beautiful devotion at Phillip’s funeral she wrote this personally herself.”
Friends of the family referred to the veteran’s devotion to the Applicant and his son, and how they would visit him at his Blackbutt home in the time leading up to his death.
Ms Milagros Schou, in a Statutory Declaration of 13 October 2021 deposed as follows – Exhibit 7:
“Marissa and PJ [Matthew] would stay up at Blackbutt during school holidays as well as weekends. Marisa spent a lot of time at Phillips house in Blackbutt.”
The evidence before the Tribunal suggests that both the Applicant and the veteran played active roles in caring for Matthew, and that the veteran was very attached to the Applicant’s two adult daughters.
The Tribunal was provided with a statement from a Ms Jocelyn Getaruelas, of 3 June 2018 who has two daughters, the eldest attending Moorooka State School. She became acquainted with the Applicant and the veteran, and made the following observations – Exhibit 1 T11 p. 54:
“I met Marissa Catolico last January 2016 at the same suburb. Her son PJ was in the same school as my eldest daughter too. Marissa and I been a good friend since then. She introduce me to her partner Phil Sheehan, the father of her son. I can describe him as a good person and a great responsible father to PJ. I saw him and Marissa many times at school to picked [sic] up their son.
The last time I saw Phil was on [sic] December 2016, last day of school. PJ received an award that day from school. I saw how happy the proud parents watching their son walking up the stage & smiling back to his parents.”
The Tribunal has no reason to disbelieve Ms Getaruelas, and it would appear, from her statement, that both the Applicant and the veteran played an active and positive role in the education of their son.
Whilst Matthew lived primarily with the Applicant, he also spent time with the veteran at his Blackbutt home, either by himself or also with his mother, the Applicant. Indeed, tragically, Matthew was with his father at the Blackbutt home when the veteran suffered a fatal heart attack.
In short, the evidence is tolerably clear that, to all intents and purposes, the veteran and the Applicant operated as a family unit with respect to the care and nurturing of Matthew, and that Matthew was very close to both his parents.
(ii) Living arrangements
It is not contested that, from the time the Applicant left the Applicant’s Morayfield home, she and the Applicant maintained separate residences.
In her statement to Centrelink of 24 February 2021, the Applicant stated – Exhibit 11:
“…Following the Federal Court Order, I allowed Phillip to visit my house fortnightly where he stayed overnight.
The last six months before his death, Phillip stayed between Greenslopes Private Hospital and my residence for a minimum of two nights a week. I took Phillip to numerous visits at Greenslopes Hospital Keith Payne Unit where he saw psychiatrist Dr Gibson. In the last six months before Phillip’s passing, our family relationship improved…”
Ms Schou, a friend of both the Applicant and veteran, would visit the Applicant at her Moorooka unit – Exhibit 7:
“Marissa told me when she and Phillip got back together which was late 2016. This was around the time Phillip bought his house at Blackbutt. I would travel down to Moorooka where Marissa was living. At that time Phillip would visit and stay over, while I was there.”
As noted above, Ms Lear was told by her brother (the veteran) that he would leave Blackbutt early on a Friday so he could spend the day with the Applicant and their family – Exhibit 5.
It is clear from the evidence that the main reason that the veteran and the Applicant did not live together on a permanent basis was the veteran’s ongoing mental health problems. Mr Gregory stated – Exhibit 1 T11 p. 58:
“…the only reason why they weren’t still living together was because Phil couldn’t cope with it, and he would often say to me he liked his solace and space…”
Likewise, Ms Lear deposed – Exhibit 5:
“I knew very well of Phillip’s anger, his outbursts and the many physical fights. I believe Phillip knew how volatile he was and why he chose to keep his distance from Marissa, PJ and her two daughters. I believe Phillip moving to Blackbutt from Caboolture was better for him, as it was a much quieter environment.”
Mr Williams pointed out (RCS p. 15) that, when the veteran moved to Blackbutt after the breakup with the Applicant, it was further away from where the Applicant and her children resided, and a considerable distance from Greenslopes Private Hospital. While this is the case, as Ms Lear and Mr Gregory highlight, the veteran’s ongoing mental health issues resulted in him living, at times, a reclusive existence. The veteran’s need for solace and space did not derogate his desire to be with his family, but it does explain, as Ms Lear explained, why he kept separate residences.
(iii) Housework
The undisputed evidence before the Tribunal is that, when the veteran and the Applicant lived in the same household, the Applicant did most, if not all, of the housework. She cooked the meals, cleaned the house, washed clothes and ironed.
Although specific evidence about arrangements at the Moorooka unit was not provided, the Tribunal proceeds on the assumption that the Applicant (possibly with the assistance of her daughters) would have performed similar duties.
Likewise, the Tribunal was not provided with evidence of whether the Applicant did the housework at Blackbutt when she visited; however, the Tribunal proceeds on the assumption that most of the time the veteran resided at Blackbutt, he was alone and would have performed the housework.
(c) Social aspects of the relationship
(i) Did the veteran and Applicant hold themselves out as being in a de-facto relationship?
The veteran’s sister, Ms Lear, deposed – Exhibit 5:
“Phillip referred to Marissa as ‘his wife’ and Marissa stated Phillip as ‘her husband’”.
Ms Matthews, who had known the veteran and the Applicant since 2007, deposed – Exhibit 6:
“Marissa and Phillip talked a lot about getting married in those last months but they had not made a definite date. Phillip told me many times that he wanted to get married to Marissa.”
Another family friend, Ms Schou, who also had known the veteran and the Applicant since 2007 likewise deposed – Exhibit 7:
“Marissa told me when Phillip gave her a ring – it was always their plan to get married. Marissa and Phillip were getting on really well. PJ [Matthew] loved his dad and Phillip had wanted to marry Marissa for a really long time, but Marissa wanted to wait because of his PTSD. If Phillip had not died, they would be married.”
Ms Getaruelas, who first met the Applicant in January 2016 and was “a good friend since then” made this observations – Exhibit 1 T11 p. 54:
“She introduce me to her partner, Phil Sheehan, the father of her son…I saw him and Marissa many times at school to picked [sic] up their son.”
It is tolerably clear that those persons who interacted with the veteran and the Applicant on a social basis viewed them as being in a de-facto relationship. The evidence provided by Ms Lear is particularly telling, as when her brother spoke to her about the Applicant, he referred to her as his wife.
The Statutory Declarations of Ms Matthews and Ms Schou, persons who had known the veteran and the Applicant, for a number of years, viewed them as a couple in a marriage-like relationship. Clearly there was a break in that relationship for a time after the Applicant left the veteran, but it would appear that, prior to the veteran’s death, he and the Applicant were again holding themselves out as being partners. The observations of Ms Getaruelas are consistent with this.
(ii) The assessment of friends and regular associates of the nature of the relationship
As the above quotes highlight, the friends and associates of the veteran and the Applicant viewed them as being in a de-facto relationship.
Ms Lear deposed as follows – Exhibit 5:
“Marissa was Phillip’s life partner.”
Mr Gregory, who had known the veteran and Applicant since January 2015, referred to them as being “engaged” and that the veteran “was going to marry Marissa in the near future”. He also stated that the veteran “loved Marissa & PJ very much and said to me at one time that when he dies he will leave everything to PJ and Marissa and for Marissa to organise his will thereafter” – Exhibit 1 T11 p. 58.
It is the case that the veteran and the Applicant lived in separate premises, and the veteran never formalised their relationship by marrying the Applicant. Moreover, there is documentation that is, ostensibly, not consistent with the proposition that the Applicant and the veteran were in a de-facto relationship following their separation. This material is dealt with below.
However, the evidence presented from family, friends and associates of the veteran and the Applicant strongly suggest that they viewed the pair as being in a bona fide de-facto relationship, not only prior to the separation, but subsequently and, critically, in the time leading up to the death of the veteran.
(iii) Joint social activities
At the Hearing, the Applicant gave the following evidence about her social life with the veteran – Tr. 29.11.2021 pp. 23 – 24:
“DEPUTY PRESIDENT: Did you ever do things without him? In other words, did you go out and have dinner by yourself, or go on trips away on holidays by yourself?
INTERPRETER: No, I don’t leave him.
DEPUTY PRESIDENT: You’re always together with him?
WITNESS: M’mm.
DEPUTY PRESIDENT: In term of social activities then, you always operated as a pair? You never did social things by yourself, always with Mr Sheehan?
INTERPRETER: No, we were always together.
WITNESS: Even we walk together around the block or have exercise.
DEPUTY PRESIDENT: Exercise together?
WITNESS: M’mm.”
The statement of Ms Getaruelas highlights that the veteran and the Applicant attended school functions for their son.
In addition, the Applicant stated – Exhibit 11:
“We went out as a couple to eat meals with PJ and my older children.”
The evidence before, albeit relatively brief, suggests that insofar as the veteran and the Applicant engaged in social activities, they did so as a pair. It would appear that the veteran was, according to his sister, Ms Lear, an introvert who did not regularly engage in social activities – Exhibit 5:
“Phillip was always a loner, a very private person, and kept to himself.”
One of the Applicant’s daughters, Manette, made this observation – Exhibit 8.6:
“We have asked him to move to the city with us but he cannot give up his telescope. As it is his hobby and he would say that it is too bright to be in the city.”
Mr Gregory, who knew the veteran in the two years up to his death, observed that the veteran “liked his solace and space” and was content with star gazing with his telescope.
The evidence suggests that following the veterans war-service, he returned to Australia with a number of mental health issues, resulting in him getting angry and involved in violent altercations. In his later years, the veteran became more and more reclusive, and the focus of his life became the Applicant and his children and step-children. Insofar as the veteran engaged in social activities, they were almost exclusively carried on with the Applicant.
(d) Sexual relationship between the people
The undisputed evidence before the Tribunal is that the veteran and the Applicant maintained a sexual relationship up until the veteran’s death.
In an undated statement to the Tribunal, the Applicant said – Exhibit 11:
“When he came for his access visits to see PJ he stayed overnight, and we still had a sexual relationship.”
Further, in her 24 February 2021 Centrelink statement, the Applicant said – Exhibit 11:
“…In the last six months before Phillip’s passing, our family relationship improved. Whilst this is very difficult for me to disclose, we shared an intimate and sexual relationship as we loved one another very deeply.”
The Applicant confirmed this during her testimony – Tr. 29.11.2021 p. 30:
“DEPUTY PRESIDENT: You were having sex with him?
INTEPRETER: When the kids are in their school. It’s normal.
DEPUTY PRESIDENT: It’s okay. How long was this going on for? How long?
WITNESS: Before he died.”
Subsequently the following exchange occurred – Tr. 29.11.2021 p. 31:
“DEPUTY PRESIDENT: What I want to know is, this arrangement with Mr Sheehan, where he would visit almost every day, they were living in a man and wife relationship, they’re having intimate relations, they’re eating together, they’re walking together, they operating as a husband and wife, was this one month before he died, six months before he died, 12 months? How long did this carry on for?
WITNESS: Relate start 2016.
INTERPRETER: He doing it already and visiting us and staying there since July 2016.
DEPUTY PRESIDENT: Till the time he died?
INTERPRETER: Till the day he died.
WITNESS: Yes.”
Mr Williams submitted that the Federal Court places little weight on this aspect of a relationship between two people – RCS p. 16. The Tribunal does not accept that this submission accords with the numerous Federal Court and Tribunal decisions in this area.
The existence of a sexual relationship is not determinative of whether a couple are in a de-facto relationship. It is sometimes the case that the sexual relationship is not consensual, and one party is being forced into behaviour they do not wish to engage in – see Bruce and Secretary, Department of Social Security (1995) 39 ALD 473 and SRH and Secretary, Department of Social Security (1996) 42 ALD 463.
Further, even if a couple engage in sexual relations, albeit not regularly, and the behaviour cannot be characterised as either being of a loving or caring nature, then it may not be indicative of a bona fide de-facto relationship – Reid and Secretary, Department of Social Security [1995] AATA 304.
It may be that even if two persons share the same premises and engage in sexual relations, there is no de-facto relationship when the reason for living under the same roof is purely economic and the sexual relations are opportunistic and lacking in any love or commitment – Alirezai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 655.
Conversely, where there is evidence of a couple sharing the same bedroom, having sexual relations with evidence of commitment and emotional attachment despite them living independent lives, the Tribunal has found that this is sufficient to find the existence of a de-facto relationship – Stuart and Secretary, Department of Social Security (1985) 9 ALN N38.
The uncontested evidence before the Tribunal is that, from some point of time in the middle of 2016, the veteran commenced visiting and staying overnight at the Applicant’s home. When the veteran visited the Applicant, they engaged in sexual relations. It is also uncontested that the relationship between the veteran and the Applicant was, by this time, a caring and loving one. The sexual relations were not opportunistic, non-consensual or devoid of mutual love and affection. This pattern of behaviour continued unabated until the veteran’s death and could not be categorised as short-term.
(e) The nature of the people’s commitment to each other
(i) Length of the relationship
The veteran and the Applicant first met in the Philippines in December 2005 and, apart from a period when they separated in 2015, they remained in a relationship until the veteran’s death on 29 April 2017.
(ii) Nature of companionship and emotional support provided to each other
The evidence discloses that there was a close and caring relationship between the veteran and the Applicant.
The totality of the evidence before the Tribunal suggests:
(a) from the time the veteran met the Applicant, he cared for her and her family. The Applicant gave this evidence about the level of support the veteran provided to her in the first years of their relationship – Tr. 29.11.2021 p. 18:
“Everything is being looked after financially by my boyfriend even when he went back to Australia. And when I went with him my children left – we stay in the apartment but being financially supported, the rent, the food, the schooling, clothes, everything he covered out the cost.”
(b)after the Applicant and her children came to Australia, the veteran cared for them and provided them all the necessities of life. Apart from the problems caused by the veteran’s mental illness with consequent anger management issues, the evidence suggests he was a loving father and partner, and supported his family in every way he physically, emotionally and financially could do;
(c)the Applicant also, it would appear, was a loving mother and partner and accompanied the veteran wherever he went and performed all consequent domestic duties;
(d)the Applicant provided ongoing practical support for the veteran in the period leading to his death. The following information was provided by the Applicant to Centrelink on 24 February 2021 – Exhibit 11:
“The last six months before his death, Phillip stayed between Greenslopes Private Hospital and my residence for a minimum of two nights a week. I took Phillip to numerous visits at Greenslopes Hospital Keith Payne Unit where he saw psychiatrist Dr Gibson.”
In short, the evidence before the Tribunal is that the veteran and the Applicant were a loving and caring couple up until the veteran’s death. It is tolerably clear that the ongoing mental health problems that afflicted the veteran impacted negatively on his ability to socially interact. Despite these limitations and problems, the evidence suggests that the mutual companionship and emotional support between the veteran and the Applicant in the period leading up to his death was manifest and reflected in the evidence presented by family, friends and associates.
(iii) Whether the people consider the relationship will continue indefinitely
For the Tribunal, the key evidence about this consideration is the Statutory Declaration of the veteran’s sister, Ms Lear, who deposed, as noted previously, that “Marissa was Phillip’s life partner” - Exhibit 5.
Other family friends have deposed or stated to like effect, which has been set out previously, but to the Tribunal, the fact that the veteran’s sister deposed that the veteran viewed the Applicant as his life partner, is of importance. That the veteran would tell his sister that he viewed the Applicant as his life partner suggests to the Tribunal that his relationship with the Applicant was not temporary or opportunistic, but deeply felt and intended to be permanent.
(iv) Whether the people see their relationship as a de-facto relationship
The Tribunal has already set out at length, the view of family and friends of the veteran and the Applicant that they viewed them as being in a marriage-like relationship.
(f) Other issues
It is important in this matter to deal with some important legal issues that otherwise undercut the impression that, at the time of his death, the veteran was in a de-facto relationship with the Applicant.
(i) The veteran’s Will
The veteran made his last Will with the Public Trustee of Queensland on 18 May 2015 – Exhibit 1 T12 p. 60.
The veteran left the whole of his estate to his son, Matthew Sheehan, absolutely if he lives to be 25 years of age. In the event this failed to occur, then the veteran left the whole of his estate to the Queensland Community Foundation.
Mr Williams points out that there is no provision in the Will for financial support for the Applicant – RCS p. 16 – 17 para 3.15.
In the usual course, if a person makes a Will close to their death and makes no financial provision for the person who is said to be their de-facto spouse, usually an inference can be drawn that the relationship of the parties is not close, or that the maker of the Will has, for a particular reason, decided not to provide any assistance to the person who is said to be his or her de-facto partner.
Reference can be made to the following exchange at the Hearing between the Tribunal and Mr Williams – Tr. 29.11.2021 pp. 50 – 51:
“DEPUTY PRESIDENT: Yes. And this will was made on---
WITNESS: 2015.
DEPUTY PRESIDENT: --- 18 May 2015
….
DEPUTY PRESIDENT: So, this is at a time when the veteran and the applicant have separated, they had parted company.
MR WILLIAMS: That’s consistent with the date of the Federal Court determination.
DEPUTY PRESIDENT: It says at the time when they are both ‘cranky’ with each other.
WITNESS: Yes.
MR WILLIAMS: It seems to be that 12 months or so until there was contact made back through, and there is a statement to that effect.
DEPUTY PRESIDENT: So, at this stage, the parties are disputing custody, they’re not living together and the relationship has, at that stage, broken down.
MR WILLIAMS: They were in dispute. That dispute was resolved. There is a Federal Court order. That’s exhibit 11, Federal Circuit Court of Australia consent minutes, dated 23 October ’15.
DEPUTY PRESIDENT: Yes.”
It is tolerably clear to the Tribunal that, at the time the veteran made his last Will, he and the Applicant had separated and were in the midst of an acrimonious custody dispute which only resolved approximately five months after the Will was made.
The evidence before the Tribunal suggests that the veteran and the Applicant reconciled, and by mid-2016 they were again living as a de-facto couple. It is not surprising, then, that when the veteran made his Will, he did not make the Applicant a beneficiary.
In these circumstances, the Tribunal does not draw an adverse inference to the proposition that the veteran and the Applicant were in a de-facto relationship, from 2016 until the time of the veteran’s death, because of the terms of the veteran’s Will made on 18 May 2015.
(ii) Hospital documentation
The Tribunal has been presented with a bundle of documents comprising medical records of the veteran from Greenslopes Private Hospital – Exhibit 12. Unfortunately, the documents are not paginated, and reference can only be made to the particulars of the relevant document.
Reference can be made to three documents which, prima facie, cast doubt on the proposition that the veteran and the Applicant were in a de-facto relationship in the period leading up to the veteran’s death.
The first document is a report by Ms McSorley, Social Worker, dated 12 January 2017.
Ms McSorley records the veteran’s marital status as “Separated from defacto 2 years ago”. Then under the heading “CURRENT LIVING SITUATION” the following information is recorded:
· Children: Has 8 yr old son who lives with his mother but Phillip sees son every forthnigh [sic] and has a flexible arrangement,
· Supports ex partner
· History of relationships current/past: 10 yr defacto relationship separated 2 years ago. Has a 7 year old son. Maintains a positive friendship.”
The second document is a “POST TRAUMATIC STRESS DISORDER PROGRAMME DISCHARGE SUMMARY” prepared, it would appear, by Dr JN Gibson on 6 April 2017.
Under the heading “RELATIONSHIP SKILLS”, the following information was recorded:
“Mr Sheehan was willing to share his experiences with the group spontaneously quite often referring to his previous relationship with the mother of his son and the difficulties he experiences navigating their different parenting styles…”
On the same day, a Greenslopes Private Hospital KPU DAY CENTRE DISCHARGE SUMMARY was prepared.
Opposite the box marked “Partner”, the word “ex” has been written.
If these documents were taken on face value, a view could be formed that by 2017, there was no de-facto relationship between the veteran and the Applicant.
It is not clear why the veteran made these (and other) statements to various professionals at the Greenslopes Private Hospital. When cross-examined by Mr Williams, the Applicant testified – Tr. 29.11.2021 p. 59:
“Because Phil is on and off grumpy.”
The thrust of the Applicant’s testimony was that, despite attending anger management classes, the veteran remained in a grumpy state, and that this may have been a reason for him downplaying their relationship.
The Tribunal is not convinced that this provides an adequate explanation for the veteran downplaying his relationship with the Applicant.
In a statement sent to the Tribunal, the Applicant stated – Exhibit 11:
“Philip was a very private person and did not want DVA to know that he was supporting me financially or that we still had a relationship as he did not want it to affect his DVA payments and my Centrelink payments.”
In a document ostensibly prepared in response to Centrelink queries, and dated 24 February 2021, the Applicant stated – Exhibit 11:
“Before the Federal Court Order Phillip gave me $300.00 cash a fortnight. Phillip started providing cash again in last six months before his passing – this was on top of any money transferred into my bank account. Phillip always provided financial support to help both myself, Matthew and his sisters. Phillip stated he did not want to lose his DVA benefits and why he continually stated was not living in a de-facto relationship. Phillip also encouraged me to apply for a sole parent pension as he wanted to maximise income and another reason to state why we were not living in a de-facto relationship. I now understand this was not right and suffer, yet again, another sense of loss and grief over not understanding my rights.”
In reaching a conclusion, the Tribunal has to determine the quality of the evidence provided by the Applicant, as no other witnesses were called.
Having observed the Applicant give evidence, the Tribunal formed the view that she answered the questions asked in a direct and apparently honest manner. She was not evasive or argumentative. The Tribunal observed that she was very nervous and emotional, and frequently broke down. On the whole, the Tribunal formed the view that she was a witness of credit and her evidence should be accepted as being an honest account of her understanding of the events that unfolded between her and the veteran.
The Tribunal, therefore, finds that the veteran was less than honest when he described his relationship with the Applicant to the professionals who treated him at the Greenslopes Private Hospital. There was an apparent pecuniary matter, whether right or wrong, in the mind of the veteran that led him to underplay his relationship with the Applicant. It would be a perverse outcome if the subjective misunderstandings of the veteran were to carry forward and inflict an unintended and unfair outcome on the Applicant.
This matter has a number of similarities with the circumstances in Dietman and Repatriation Commission [2019] AATA 4428 (Dietman). In that matter, Dr Dietman “announced” to the Respondent that he and Ms Christine Hanrahan “have been partners and have been living together since 9.11.02”. Dr Dietman did this without informing Ms Hanrahan, in an attempt to “obtain for her an advantage she did not want and which she was unaware of”. This resulted in “Dr Dietman, a man then of 92 years,” blundering “into a bureaucratic process through his unwanted and misdirected correspondence because of a chivalrous attempt to assist his dear friend, Ms Hanrahan” – at [137].
In both Dietman and this matter, the veterans have provided incorrect information to the authorities in an attempt to obtain a financial advantage for persons they held dearly, and further, in this matter, to obtain a financial advantage for the veteran himself. In both instances, their provision of misinformation has, in fact, placed the persons they held dearly in a position of disadvantage.
Conclusion
The Tribunal is reasonably satisfied that all of the conditions of s 5E(2)(b) have been met.
First, the Tribunal is satisfied that the veteran was living with the Applicant at the time of his death for the purposes of s 5E(b)(i). Although the parties were living in separate premises, the veteran was regularly staying overnight with the Applicant and her family, and during the time that he stayed with the Applicant, was living in a marriage-like relationship.
The deeming operation of s 5E(3) operates in this matter, because the absence of the veteran from living with the Applicant on a full-time basis was due to his mental health illness. But for the existence of that illness, the evidence points to the veteran wanting to live with the Applicant and their son permanently. It is sad to note that the veteran was taking positive and proactive steps to receive targeted mental health professional assistance in the period leading up to his death such that he may have been able to live with the Applicant under the one roof permanently.
Second, the Tribunal is reasonably satisfied that the veteran and the Applicant were in a de-facto relationship at the time of the veteran’s death.
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.
I certify that the preceding 197 (one hundred and ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
.................[SGD].......................................................
Associate
Dated: 22 February 2022
Date of hearing: 29 November 2021 Applicant: In person
Date final submission received: 12 January 2022
Advocate for the Applicant: Ms Kerri Paterson
Legacy BrisbaneAdvocate for the Respondent: Mr Bruce Williams
Repatriation Commission
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