Cunningham and Military Rehabilitation and Compensation Commission
[2009] AATA 344
•14 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 344
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2008/3214
VETERANS’ APPEALS DIVISION )
ReBelinda CUNNINGHAM
Applicant
AndMilitary Rehabilitation and Compensation Commission
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date14 May 2009
PlaceSydney
DecisionThe Administrative Appeals Tribunal affirms the decision under review.
....................[Sgd]..........................
Ms N Isenberg
Senior Member
CATCHWORDS
COMPENSATION CLAIM – review of decision that affirmed the applicant did not qualify for compensation as the applicant did not satisfy the criteria as a dependent of the late PTE John Turner, pursuant to Section 4 of the Safety, Rehabilitation and Compensation Act 1988 - meaning of ‘bona fide domestic basis’ considered – was the applicant a spouse of the deceased - was the applicant’s child partly or wholly dependent upon the deceased – whether the applicant’s child and the applicant have any entitlement to a share of the deceased compensation payments pursuant to sections 17(3) and 17(4) of the Safety, Rehabilitation and Compensation Act 1988.
RELEVANT ACTS:
Safety, Rehabilitation and Compensation Act 1988 – sections 4, 4(1), 4(5), 17(3) and 17(4)
Defence Act 1903 – section 58B(1)(b)
Social Security Act 1991 – section 4
Defacto Relationships Act 1984 NSW
CITATIONS
Re Fitzpatrick and Commissioner for Superannuation (1995) 38 ALD 767
Re Tang and Director-General of Social Services (1981) AATA 42
Re James L Lynam and Director-General of Social Security [1983] AATA 203
Re Karen Lambe v Director-General of Social Services [1981] FCA 171
Roy v Sturgeon (1986) 11 NSWLR 454REASONS FOR DECISION
14 May 2009
Ms N Isenberg, Senior Member
background
1. On 11 March 1999 PTE John Turner, aged 21, was tragically killed in a motor cycle accident on his way to work.
2. About eight weeks before his death he had taken Belinda Cunningham, who was then aged 17, and her eight month old daughter from another relationship, Jaymee Lei, into his parents’ home. John and Belinda commenced a sexual relationship and their child, Tyrone, was conceived. PTE Turner’s death occurred within days of learning of the pregnancy.
3. Belinda claims that at the time of John’s death they were living together on a bona fide domestic basis and, as such, she is entitled to a share of compensation payments in respect of his death. She also claims that Jaymee Lei was dependent on John and is similarly entitled to benefits.
legislation
4. A person who is a “dependant” who is “wholly dependent” or “partly dependent” on an employee at the date of his death has an entitlement to compensation pursuant to sections 17(3) and 17(4) of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). Under section 4 of the SRC Act Dependent is defined to mean “dependent for economic support”.
5. A spouse comes within the definition of dependent. “Spouse” is defined to include a person living with the deceased at the time of his death on a bona fide domestic basis. A spouse is deemed to be economically dependent: s 4(5) of the SRC Act.
§a “spouse”, is entitled to an additional death benefit pursuant to a Defence Determination issued pursuant to section 58B(1)(b) of the Defence Act 1903
§A step child may be a “dependant” and, if “wholly dependent” or “partly dependent” on a deceased employee at the date of his death may attract an entitlement to compensation: sections 17(3) or 17(4) of the SRC Act
§A “dependant child” under 16 may also be entitled to benefits under Defence Determination issued pursuant to section 58B(1)(b) of the Defence Act 1903.
issues
6. This issues before the Tribunal are:
(a)Was Belinda living with John on a bona fide domestic basis at the time of his death?, and
(b)Was Jaymee Lei either John’s “step-daughter” at the time of his death or a person in relation to whom the deceased stood in the position of a parent?
the evidence
7. There was voluminous material before me and the Exhibits are noted in Annexure A to this decision. Belinda was assisted by Mr and Mrs Humphries, the parents of her current partner.
8. Belinda gave evidence, as did members of the Turner family: John’s mother, Lorraine, his uncle Ian, his aunt Genevieve, his brother Alan, and his friend Robert Morris, all of whom had also provided statements or statutory declarations.
9. Counsel for the Respondent, Mr Dube` asked that it be noted that the Respondent was not championing the position of the Turners over Belinda, and that the Respondent was taking the position of assisting the Tribunal in reaching the correct and preferable decision. He confirmed that the Turners had no pecuniary interest in the outcome of these proceedings.
belinda moves to the turners’ home
10. Belinda gave evidence that she had left home at 14, and had been in a violent relationship with Andrew, Jaymee Lei’s father, who was a drug user and alcohol abuser, since she was about 16.
11. She had first met John in 1996 through Andrew and other mutual friends. Jaymee Lei was born in June 1998 and Belinda separated from Andrew in November 1998. She was living alone with Jaymee Lei when she met up again with John in late 1998, after he had returned from a year’s Army training in Kapooka. In the first two weeks of 1999, (which was presumably during Christmas stand-down) he would drive from his parents’ home to see her at Tweed Heads every couple of days and they would go out for dinner or to the movies or on picnics. He “uplifted” her life, she said.
12. In mid January 1999 John kissed Belinda for the first time. He asked her if she would like to move into his parents’ home. She presumed at the time that that was to be in a relationship with John and she “did take the opportunity up”.
13. She said she then told the real estate agent she was moving and Andrew took over the lease.
14. About a week later, on 25 or 26 January she caught a bus to her mother’s, taking with her two or three bags of clothes and Jaymee Lei’s pram. When she had confirmed John was at home, her mother drove her to John’s parents’ home. Over the following week the remainder of her goods were collected from Tweed Heads.
15. Robert Morris thought John regarded Belinda as “a good friend” when he moved her into his parents’ house. John’s earlier relationships had entailed extravagant expenditure, were largely one-sided and failed after a month or two.
16. In a statement to Queensland police dated 15 April 1999 (T15 page 104) Belinda described herself as “John’s girlfriend”. She said that on 9 or 10 January that year John had said to call him if ever she needed a place to live. She presumed he meant to be his girlfriend. She said there that she moved on 25 January and they “began dating”.
17. By all accounts the family was very welcoming. Lorraine described Belinda’s relationship with the family as “lovely”, and that it remains so. Lorraine said the family was very protective of her because of her “grave situation”. They assisted her in teaching her to drive, enquiring about further education, arranging childcare for Jaymee Lei, activities which she, Lorraine, regarded as providing “independence from John”.
18. Ian Turner thought Belinda was exploiting the family network to assist in the caring of her child, but conceded he had only met Belinda three times. He knew John to be a highly supportive person; a “glue” person. Genevieve Turner also gave evidence of her nephew’s caring nature and that he had wanted to help Belinda out of a very violent relationship and that he had asked his parents to “take her in”. Alan thought his mother was trying to help Belinda to get some education but he thought Belinda was just “doing her own thing”.
19. Lorraine understood Belinda would be staying in their home on a temporary basis.
john and belinda in the turners’ home
20. Belinda’s evidence was that she, John, and Jaymee Lei had shared a room upstairs at the end of the hall. The room had previously been Alan’s and he had had to share with Douglas, the youngest of the three Turner brothers.
21. For the most part, the Turners’ position was either that John had lived at the barracks and occasionally stayed in “his room” downstairs.
22. Alan gave evidence that he had helped John “build” “John’s room” downstairs under the house. By all accounts it was very roughly put together and “a mess”. Photographs were tendered and there was dispute as to the state of the room at the relevant time. Later, in about 2003, council approval was sought, apparently to approve some work already undertaken under the house. Ross, John’s father, appears to have fancied himself as a handyman and had erected the room and also a bathroom and was seeking retrospective council approval. Photographs showing a neat “study” style of room are inconsistent with the family’s evidence of John’s habitual messiness.
23. Lorraine also said that some of Belinda and Jaymee Lei’s things were stored in the downstairs room.
24. What is clear though, is that John and Belinda slept together at least some of the time because Belinda had fallen pregnant to John. From Lorraine’s evidence, even she knew they were sleeping together.
25. Alan only saw John and Belinda together about four or five times after she moved in. He did not think Belinda was John’s girlfriend because there was no public display of affection, such as hand-holding or kissing, unlike with John’s previous girlfriends. He did not observe John and Belinda to be “close” and thought she was trying to be independent. Genevieve also had observed situations where she would have expected a higher level of public affection, but accepted that some people are not demonstrative. She said she thought John “came to believe that he cared for [Belinda]”.
26. John, Belinda, and Jaymee Lei had a short holiday in Noosa. Lorraine said John and Belinda would go out and she would babysit Jaymee Lei. John would also go out alone or with Alan and would work on a boat under the house. He would ride his motor bike alone as Belinda did not like them. He and Robert Morris would still go out together and were “still carrying on like two single males at the age of 21”.
27. John gave Belinda driving lessons but she did not get her licence until September 1999. She said they had gone “car shopping” together and the car was purchased so they could go on “family trips”. There was evidence from bank statements that Belinda had paid for a battery for the car on 8 March 1999, and the day before John’s death had paid for petrol. Jaymee Lei’s baby seat was placed in the car, but was also moved into other cars depending on transport arrangements. After John’s death the Turners gave the car to Alan.
28. Belinda said that they combined all their “money” in a tray under the TV in the bedroom. Belinda also received Centrelink benefits in her own name and as a single person. When they went out John paid at some venues where, as a defence member, he could get a discount. Belinda also paid sometimes. Belinda said that John sometimes slipped money into her purse and that he had, on the night she moved in, paid for some supermarket items for Jaymee Lei. Lorraine thought John and Belinda always “went Dutch” and had no recollection of Belinda and John ever buying anything for each other.
29. Belinda did not pay board but said that she would sweep and mop the floor, clean the bathroom and do washing and at times do dishes. Lorraine said Belinda was a guest in their house and only looked after the baby and herself and Lorraine never observed the house to have been cleaned while she was at work, only tidied of Jaymee Lei’s toys. She could not recall Belinda ever cooking a meal. John and Belinda did not buy any groceries for the home.
30. Belinda said that John loved Jaymee Lei and treated her as his own and he would cuddle her first on his return from work in the afternoon. In previous statements Belinda said Jaymee Lei called John “Dad” but I note that she was only 7-8 months old at the time. Sometime during February Jaymee Lei was ill with a high temperature and had to be hospitalised. On the hospital admission form John was described as Jaymee Lei’s father.
the juliette street property
31. Belinda said that she and John were looking for a place to live closer to the barracks and a place convenient for her to go to TAFE. She understood the Turners were going to buy the Juliette St property for them to live in and they would pay rent. From Lorraine‘s evidence contracts were exchanged in mid February, that is, only two to three weeks after Belinda came to the Turners’ home.
32. Alan and Robert Morris said that they and John were looking for a place to rent but had difficulty obtaining suitable references to satisfy potential landlords. Instead, the Turners were going to buy an investment property and they would all rent it from them. When Belinda came along, she was going to be there too. Lorraine confirmed that this was the intention.
andrew’s violence and the dvo
33. Belinda said that Andrew was angry that John had “stolen” Belinda and Andrew had threatened him with an axe or a sledgehammer. At Lorraine’s suggestion Belinda and John took out a domestic violence order. Lorraine said that John had gone to Army lawyers to see if he could get a DVO against Andrew.
34. Lorraine gave evidence that Belinda was so scared of Andrew that she would not be left alone in the house and that she did not want Andrew to know where she was. Belinda’s evidence was that she was only scared for John, but conceded that if Andrew had come within 200 metres of her she would have been scared.
35. Robert Morris was aware of Andrew’s violence towards Belinda and Jaymee Lei and thought that John had “moved Belinda” because of that.
36. In the DVO Belinda was described as Andrew’s “spouse”. John, “an associate” was described as a “friend” and noted that Andrew had threatened him. An order was sought that Andrew not come within 100 metres “of us” and that Andrew not contact John or Belinda “except with my written permission to contact our daughter or as permitted by a Family Law Court order”. It was submitted that by saying “our daughter” John regarded Jaymee Lei as his own child.
37. In the accompanying annexure headed “history of domestic violence” Belinda had written that she and Andrew had separated on 25 January 1999. She denied in her evidence that that was the date of their “official splitting up” but the date she moved out of her former address.
38. In the history she described John as “my friend”, but had no adequate explanation for that other than to refer to Lorraine’s suggestion that John join in the DVO after being threatened by Andrew.
the pregnancy and marriage discussions
39. Belinda’s evidence was that from the outset she and John and Jaymee Lei were given the bedroom at the end of the hall. From her evidence she appeared to be initially startled at this. The following day they commenced a sexual relationship.
40. One night, Belinda said, she and John chose not to use a condom because “John wanted to extend our family”. In earlier statements she said they had only used a condom once notwithstanding that they proceeded to have a robust sexual relationship. When she failed to menstruate at the end of February as scheduled, on 9 March before John went to work, they did a home pregnancy test, which proved positive. That night, she said, they told John’s mother, who may have discussed abortion. In her statement to Queensland police dated 15 April 1999 Belinda said that on discovering she was pregnant they were “unsure what to do”.
41. Lorraine’s account was that John was upset when he told her Belinda was pregnant. There was a discussion about abortion. She said that John told her he and Belinda had previously agreed that if she fell pregnant then she would have a termination. From Lorraine’s evidence, Ross, John’s father, appears to have counselled against that. In an undated statement forming part of Exhibit A1 Belinda wrote of her disapproval of abortion. Lorraine said that she and Ross told John and Belinda that they would be supportive of whatever decision was made and, she understood that, at the time of John’s death, no decision had been reached.
42. Belinda said that the next day she and John went to the doctor’s to make an appointment together to confirm the pregnancy. The appointment was to be the following day – the day of his death.
43. That evening, she said, John proposed and they went to tell Lorraine, who, according to Belinda, “couldn’t have been more than [sic] happy for us” and suggested they go and tell the rest of the family the happy news.
44. Lorraine had no recollection of John and Belinda saying they had decided to marry but that she did tell them to go and tell the family about the pregnancy.
45. Belinda said that she and John went to tell her mother that they were to marry and John formally asked Belinda’s mother for permission. Then they went to tell Belinda’s brother and his girlfriend, Nicole at Nicole’s parents’ home, where, after the announcement, John and Nicole’s father talked at length about cars. Although there were statements from Belinda’s mother and from Nicole, no witnesses were called in support of the contention that there were marriage discussions that night. Belinda’s grandmother also provided a statement to the effect that “both Belinda and John had discussed their being married with both her grandfather and I”, but this is unlikely given that within the very few hours of leaving Nicole’s parents’ home John was dead.
46. Alan said that the first he had heard about marriage was after John’s death, notwithstanding that he had been living in the house at the time of John’s death. He could not recall if he knew about the pregnancy before John died. He said that John had told him that he was “going to try and go out with Belinda” or “get to know her like boyfriend/girlfriend”. Alan’s view was that if John had planned to marry Belinda it was because he was “cornered” and that, it would be “the right thing to do” to get married.
47. Lorraine agreed that John and Belinda were boyfriend and girlfriend. She thought though that John was emotionally immature and observed that he, for example, had never brought a girl home before.
48. Genevieve was very close to her nephew and he had confided in her over the years. She said that some time in February John introduced Belinda and Jaymee Lei to her. She showed Belinda family photos because she thought John would like her doing that because she felt John wanted Belinda to be his girlfriend. Later that month he was distressed and told her that the relationship was “going too fast” and that he was “on a rollercoaster” and that “things were getting out of control” and he did not know what to do. At the same time he told her he was getting into a lot of trouble at work. She knew nothing of marriage plans.
49. Lorraine thought John would have “been responsible” and supported his child, but that it was conjecture whether he and Belinda would have married. In the week before his death, before Lorraine knew of the pregnancy, John was very stressed, whereas previously he had been a very happy person. She thought he “loved Belinda in his own way” because she was his first girlfriend.
the will and discussions with the army
50. Belinda’s evidence was that John was very happy to learn of the pregnancy and, that day or the day before his death, discussed changing his will in favour of her and Jaymee Lei. He said he was going to talk to someone at the Army about changing his will. The appointment was said to have been for the day of his death.
51. John did have a fresh will drafted by Army lawyers, pending his unit’s deployment to Timor, which Lorraine confirmed had been discussed. An unsigned will was produced, Lorraine thought by Father Lappin, the chaplain, or some other Army officer, very soon after John’s death. It named John’s parents and brothers as beneficiaries as had his previous (1996) signed will. The signed will had, according to Army records, been “withdrawn” in February 1998 and the Army therefore did not hold any signed will at the date of John’s death. It remained a valid will.
52. I was asked to draw some inference from the fact that the draft will and the signed will were not in identical format.
53. Most problematic was a handwritten note by John’s platoon commander, LT Tamara Briggs dated 11 March 1999, the day of his death. LT Briggs could not be located to give evidence.
54. The statement reads:
…
“(1) Domestic Violence raised by John Turner and his girlfriend Belinda against Belinda’s ex-defacto (father of her child, Jaymee Lei). Last known was that the DVO had not been served as the ex-defacto had disappeared.
(2) Custody of Jaymee Lei has not been determined. John Turner has sought legal advice reference himself and Belinda fighting for custody. He advised by legal that they should wait until they have to because the longer they remain in their current situation the better their case would be (i.e. John and Belinda looking after and caring for Jaymee Lei)
(3) All three (John, Belinda and Jaymee Lei) have been living with John’s parents in Loganholme. (Have been for approx 9 months)
(4) John has been consulting with the UMD (Dr. Patel) and Army Chaplain reference stress (from all of the above). He had an appointment scheduled to see Psych. He had been feeling better lately.
(5) John and Belinda are expecting a child of their own in Nov/Dec, they have just found out Belinda is pregnant. They intend to keep the baby and marry prior to the birth.
(6) John had been informed of his right to apply for defacto status so that Belinda and he could establish their relationship properly and start forming their household”
[sgd]
LT Tamara Briggs
11 March 1999
…
55. Lorraine thought John had had only been making enquiries of the Army and had gone to Army lawyers to help Belinda get custody of Jaymee Lei, because of the “situation that she was in” .. She did not accept that LT Briggs could only have obtained that information from John but could not suggest an alternative source. The Respondent’s submission was that the document was consistent with John having made enquiries about the options available to him in making the relationship permanent because of the baby.
56. Belinda said that John was seeing a doctor and the chaplain about stress in relation to their relationship and also about Andrew.
57. As far as Belinda knew John had made no enquiries with the Army about married quarters, because she said, they were moving in the Juliette St property.
58. A letter received by the Turners from another chaplain after John’s death noted that John had consulted Father Lappin on 5 March, that is, even before he learned of the pregnancy.
after john’s death
59. Belinda said that she loved John and was devastated when he died.
60. From John’s Army file it appears that on the day after his death the Defence Community Organisation (DCO) consulted with the Turners and Genevieve, and they participated in the funeral arrangements. No mention was made of Belinda being consulted. It was noted only that Belinda was John’s girlfriend and was pregnant with his child.
61. At the funeral and burial Belinda sat in the front row with the family. Lorraine said Belinda was important to John and had “been part of our family for the last four weeks”, because she had been everywhere with the family, not John specifically, during that time.
62. Belinda said that Father Lappin had told the congregation that she was pregnant and that she and John were to marry. No other witness could recall that that had occurred and Father Lappin could not now be located.
63. Although it is not clear on what basis, Belinda was initially offered the house at Juliette St but she said, she did not want to live there with John’s friends, without John. Belinda said that the Turners’ attitude toward her changed dramatically and within two or three days after the funeral she was asked to move out of the Turners’ home. Lorraine said Belinda needed to get on with her life and to sort out her relationship with her mother. Belinda said that she did return to her mother’s but only for a night or two, and then moved to Andrew’s step-father’s home.
64. By all accounts the Turner family, understandably, had difficulty coping with John’s death. In searching for some reason for her son’s death, Lorraine even considered whether he had been murdered.
65. Erroneously, the Turners were informed by ComSuper that Belinda had claimed John’s superannuation and the Turners were bitterly upset that, after knowing John for only eight weeks, Belinda was going to share in John’s superannuation, the only asset in John’s estate other than the car. It was contended, on Belinda’s behalf, that the Turners then set about rationalising the relationship between John and Belinda so as to defeat the claim they believed she had lodged, and having committed themselves to that view, were now unable to acknowledge that John and Belinda were in a de facto relationship.
consideration of the evidence
66. At the outset I wish to note that there were some serious gaps in the available evidence, notwithstanding the voluminous material before me. For example, LT Briggs may have been able to explain what John had said or done which led to her file note. Father Lappin could have said what discussions he had had with John and whether there were later discussions about the pregnancy and marriage. Neither LT Briggs nor Father Lappin could be located. Belinda’s relatives, with whom she apparently has a strained relationship, could have clarified what occurred on the night before John’s death.
67. The end result is that I have to make my decision on the less than complete evidence before me. I wish to note, particularly for Belinda’s benefit, that my task has been a difficult one, and that no one can purport to have a full understanding of what transpires in the relationship between two other people. Further, it should be noted that reaching the correct and preferable decision, I have especially taken into account that the Turners have no pecuniary interest in the outcome of these proceedings. Having said that though, I am mindful of the grief that they have suffered, and continue to suffer and that their views, some 10 years after John’s death may continue to have been affected by that grief.
68. What constitutes living with a person as the spouse “on a bone fide domestic basis” is not defined by the SRC Act, nor has it not been considered by courts or the Tribunal in respect of the 1988 SRC Act.
69. The Tribunal considered the meaning of a similar statutory definition though in Re Fitzpatrick and Commissioner for Superannuation (1995) 38 ALD 767. There the Tribunal concluded that an important quality in determining whether a couple were living together on a “domestic” basis was whether the couple shared a common household. In that case the applicant widow was separated from her husband. The couple had only lived together for a matter of weeks after their marriage, and there was evidence that the widow had subsequently regarded herself as a single woman. The Tribunal there held that the applicant's subjective view of her circumstances was an important factor to be considered, but that it was required to be assessed in the totality of the circumstances.
70. Similar concepts have been extensively considered in respect of various aspects of the Social Security Act1991. For example, in Re Tang and Director-General of Social Services (1981)AATA 42 (“Tang”) the Tribunal identified the following factors as relevant in assessing a de facto relationship:
(a)the relationship having a quality of permanence;
(b)the living arrangements and sexual activity of the parties having the quality of exclusiveness;
(c)the pooling of resources;
(d)the sharing of expenses;
(e)the parties holding themselves out as married;
(f)the parties having a subjective belief that their relationship is like one of man and wife;
(g)the parties being joint parents of a child;
(h)the parties having a sexual relationship;
(i)the parties indulging in a joint social life;
(j)one party having a legal right to enforce obligations in respect of the other.
71. The test for a de facto relationship is an objective one and the subjective views of the parties as to the nature of the relationship are not determinative: Tang. However the Tribunal is to take into account what is the norm for the applicant’s peer group: Lynam v Director-General of Social Security [1983] AATA 203. I consider that this objective test also applies in the present circumstances.
72. In Lambe v Director-General of Social Services [1981] FCA 171, the Federal Court emphasised the necessity of considering “all facets of the inter-personal relationship”.
73. In considering the similar concept of “marriage-like relationship” subsection 4(3) of the Social Security Act1991 states that the decision maker must consider all the circumstances of a relationship, specifically including the following:
(a)the financial aspects of the relationship, including: any joint ownership of real estate or other major assets and any joint liabilities; and, any significant pooling of financial resources especially in relation to major financial commitments; and any legal obligations owed by one person in respect of the other person; and the basis of any sharing of day-to-day household expenses
(b)the nature of the household, including any joint responsibility for providing care or support of children; and the living arrangements of the people; and 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 married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d)any sexual relationship between the people;
(e)the nature of the people’s commitment to each other, including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship
74. Mr Dube for the Respondent referred me to Roy v Sturgeon (1986) 11 NSWLR 454 which was in relation to definition in the De Facto Relationships Act1984 NSW, which was cited with approval in Fitzpatrick. There Powell J in discussing 10 relevant factors, cautioned against dissecting the legislative definition into discrete elements. A value judgment should be made, having regard to a variety of factors touching the particular relationship. The factors to be considered are:
(a)the duration of the relationship;
(b)the nature and extent of the common residence;
(c)whether or not a sexual relationship existed;
(d)the degree of financial interdependence, and any arrangements for support between or by the parties;
(e)the ownership, use and acquisition of property;
(f)the procreation of children;
(g)the care and support of children;
(h)the performance of household duties;
(i)the degree of mutual commitment and mutual support; and
(j)reputation and "public" aspects of the relationship.
the duration of the relationship
75. Belinda and John, on the evidence, had known each other for a couple of years, during most of which time, she was the partner of Jaymee Lei's father, Andrew. John and Belinda’s friendship had blossomed in November and December 1998. They first kissed in mid January and commenced to live in John’s parents’ house in late January 1999. At best, their ‘relationship’, however described, was only of a couple of months' duration. A sexual relationship only dated from late January 1999, that is, about seven weeks before John’s death.
the nature and extent of the common residence
76. Belinda and John lived in his parents’ house and at no time had an independent household. Belinda understood the Turners were going to purchase the Juliette St for her and John to live in, but as the agreement to purchase the property was only two to three weeks after she and John had commenced their sexual relationship, I find this unlikely and I find the explanation given by Lorraine, Alan and Robert Morris as to the reason for the purchase to be more plausible.
77. I accept that John maintained a room at the barracks but, from time to time during the relevant period, slept at home. I accept too that he maintained the downstairs room, irrespective of its condition. After Belinda commenced living at the Turners’ home, and especially after they commenced a sexual relationship, it is likely he stayed more at home, and in particular, in the same room as Belinda.
whether or not a sexual relationship existed and the procreation of children
78. The evidence was that a sexual relationship commenced the day after Belinda moved into the Turners’ home. Tyrone was conceived, it would appear, in mid February 1999, about three weeks after Belinda moved into the Turners’ home, and about five weeks before John died.
the degree of financial interdependence, and any arrangements for support between or by the parties and the ownership, use and acquisition of property
79. During the time they were together John had bought both a motor bike and a car, both purchased in his own name, about three weeks before his death. Although Belinda paid for a battery and some petrol, I do not accept that either vehicle was jointly owned by John and Belinda, especially given her dislike of motor bikes and her inability to drive.
80. Neither Belinda nor John had other significant assets, or liabilities for that matter, which could be considered to be available to pool.
81. There was some evidence of taking turns in paying for outings. The evidence was that there was some pooling of cash in the tray under the television. While I accept this may have been the case, I place little weight on this as evidence of the degree of financial intermingling which could otherwise have occurred: there were no joint bank accounts and Belinda maintained a separate source of income, namely Centrelink benefits, which she received as a single person.
the care and support of children
82. I accept that John purchased some items for Jaymee Lei on the night Belinda moved in. There was no evidence that he otherwise provided for Jaymee Lei in any significant way. He did not, for example, record her on his Army records as a dependent. There was no evidence that he and Belinda had commenced custody proceedings.
83. I accept that John was loving towards Jaymee Lei. I also accept that Jaymee Lei was fond of him, noting though that Jaymee Lei was only 7-8 months old.
84. I note that John was described as Jaymee Lei’s father on her hospital admission form. I place little weight on that document, as it is equally consistent with John having escorted Belinda (who did not drive) to the hospital with Jaymee Lei and was recorded in error by triage staff.
85. I do not accept the reference to “our child” in the DVO to refer to Jaymee Lei as Belinda and John’s child, but to Belinda and Andrew’s child.
the performance of household duties
86. Consideration of household duties is somewhat difficult in circumstances where John and Belinda were not living in their own accommodation.
87. There was some evidence that Belinda did some household chores beyond caring solely for herself and Jaymee Lei. Even if this were so, it is consistent with making a contribution to the Turner household in circumstances where she was not paying rent. There was no evidence of her cooking meals for John, or attending to his laundry, as distinct from making a general contribution to the household.
the degree of mutual commitment and mutual support
88. John’s mother and aunt spoke of John in terms which suggested to me he was somewhat emotionally immature and, perhaps naïve. This was confirmed, to some extent, by Robert Morris, who gave evidence of John’s previous unsuccessful romantic endeavours and their continued activities as single young men.
89. I make no finding as to the basis on which John moved Belinda into his family’s home. Having said that, I consider it to be unusual that two young people, who had only begun kissing a week before and had not yet commenced a sexual relationship, would arrange to co-habit in a parents’ home. I note that in respect of the invitation to move to the Turners’, after referring to her previous abusive relationship with Andrew, Belinda said she “did take the opportunity up”.
90. I do accept that John was highly protective of Belinda. However, I also note that Lorraine and Ross also provided a level of care to Belinda: allowing her to stay rent free, babysitting, assisting in driving lessons, driving her around, and enquiring on her behalf about TAFE and childcare.
91. I do not accept that John had prepared a will in Belinda’s favour prior to his death. Numerous enquiries have been made about a fresh will. The only evidence was of a redraft of John’s earlier will, presumably in anticipation of deployment to Timor, but there was no evidence as to when this had occurred. That it was only delivered to the Turners after his death would suggest it was of recent origin. His original will had been uplifted many months before John and Belinda commenced their relationship. It is possible, as Belinda contends, that, after learning of the pregnancy, John was to have an appointment to give instructions in relation to a new will on the day of his death. There was no evidence, however, that any appointment with an Army legal officer had been made for that day, as Belinda contended.
92. As to the Briggs document, a logical explanation as to the timing of the document is that John had spoken to LT Briggs on 10 March 1999, because the document refers to the pregnancy and John and Belinda were, on the evidence, themselves unaware of this until 9 March 1999. Even on Belinda’s evidence, no decision had been made about marriage until 10 March. The document however, contains a curious mixture of tenses which equally could also suggest that the information in the document was sourced elsewhere on the day of John’s death.
93. Even if it were prepared by LT Briggs following discussions with John, I accept the Respondent’s submission was that the document was consistent with John having made enquiries about the options available to him in making his relationship with Belinda permanent because of the baby.
reputation and "public" aspects of the relationship
94. It was very unsatisfactory for Belinda to have relied on the untested statements of her mother, grandmother and her brother’s ex-girlfriend Nicole as evidence of the public announcement of marriage plans, in circumstances when she has been aware for some years that the Turners’ position is that there had been no decision to marry. Belinda remains in touch with her mother although their relationship is strained. She regards her grandmother as “weird”. Her evidence was that on the night before John’s death they had also told her brother and Nicole’s parents, none of whom was called or provided a statement. She and her brother are no longer close. I prefer the evidence of Lorraine that there was no decision to marry. I also note the evidence of the closeness between John and Alan and John and Genevieve, neither of whom knew of the decision.
95. Belinda said that at the funeral Father Lappin had mentioned that she and John were going to get married, but it is unknown, if that did occur, whether the information came to Father Lappin from John, as distinct from Belinda in their discussions after John’s death.
96. The evidence from John’s Army file, was that he had taken no steps to have Belinda noted as his next-of-kin. His file also showed that he had a large number of personal items at the barracks, which would suggest that, at the time of his death, he was taking no steps towards setting up a household with Belinda.
97. I place little weight on the evidence that John may not have appeared affectionate towards Belinda in public because not everybody is publicly demonstrative. Obviously, in private, they had a very affectionate relationship.
98. I observe that in DVO that John is described as Belinda’s friend. Robert Morris thought that Belinda and John were “good friends”. Elsewhere, including in John’s Army records, she is described as his girlfriend. Lorraine accepts this to be the case. I also have come to this view. Being someone’s girlfriend however, does not on its own equate with living on a bona fide domestic relationship.
conclusion
99. As to the nature of Belinda and John’s relationship, there is no one feature which stands out as dictating an outcome and I have reached my conclusion after considering the totality of the evidence. I have endeavoured to balance the perceptions of Belinda, a needy and damaged young woman and those of John’s grieving family. In view of my observations above I have come to the view that John and Belinda were not in a bona fide domestic relationship.
100. I have also come to the view, particularly having regard to my observations in paragraphs 82 to 85 above, that Jaymee Lei was neither John’s “step-daughter” at the time of his death nor did he stand in the position of a parent. While he may have made some purchases for her, she was not financially dependent upon him.
decision
101. The Administrative Appeals Tribunal affirms the decision under review.
I certify that the one hundred and one [101] preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed:..............[Sgd]............................
Shanthi Silva, AssociateDate/s of Hearing: 30 March 2009
31 March 2009
1 April 2009
2 April 2009
3 April 2009
Date of Decision: 14 May 2009
Applicant: Self Represented
Solicitor for the Respondent: Anella Bortone, Sparke Helmore
Counsel for the Respondent: Mr B Dube`
Annexure A
EXHIBITS
Documents tendered by the Applicant:
Exhibit A1:Bundle of eight documents including statements and affidavits of Belinda Cunningham.
Exhibit A2:Lower floor plan of Mr and Mrs Turner’s property and building works application.
Exhibit A3:Letter dated 9 September 2003 from Mr and Mrs Turner to Mr Rose.
Exhibit A4:Photograph showing area underneath house of Mr and Mrs Turner.
Exhibit A5:Freedom of Information Application to Comsuper from Genevieve Turner dated 12 September 2000
Exhibit A6: ‘T’ file documents
Exhibit A7: Letter to Sparke Helmore from Applicant with Lt Briggs’ statement dated 11 March 1999 and DCO Community Organisation facsimile cover sheet.
Exhibit A8: Statement by Belinda Cunningham dated 30 May 2002
Exhibit A9: Letter from Applicant to Sparke Helmore dated 14 January 2009
Exhibit A10: Newspaper article
Exhibit A11: Statement containing comment by Applicant (undated)
Exhibit A12: Five photographs of the area underneath house of Mr and Mrs Turner.Exhibit A13: Decision pursuant to the Military Superannuation and Benefits Act 1991 – Entitlement to Spouse Benefit – Belinda Cunningham – Applicant John Turner (deceased) dated 21 April 2008
Exhibit A14: File note – Stephen Young, Military Members Casework dated 4 January 2000
Exhibit A15: Edited version of Genevieve Turner’s statement
Exhibit A16: Email document – Comsuper dated 21 April 2008Exhibit A17: Letter dated 6 November 2008 from Belinda Cunningham to AAT with attachments: Ms Cunningham’s statement with comments on statutory declaration and other correspondence from Ross Turner to Comsuper.
Exhibit A18 : Statement by Nicole Perkins dated 9 March 2000
Exhibit A19: Statement by S A Cunningham (Step – Grandmother of applicant) dated 8 March 2000
Exhibit A20: Letter from Comsuper to Mr R H Turner dated 29 March 1999
Exhibit A21: Statement regarding “John’s Room”.Documents tendered by the Respondent:
Exhibit R1: Statutory Declaration of Robert Morris dated 29 July 2000Exhibit R2: Department of Defence Army Record of Service Report as at 30 June 2002
Exhibit R3: Statutory Declaration of Lorraine Turner dated 26 July 2000
Exhibit R4: Copies of photographs inside Turner’s house
Exhibit R5: Medical certificate of Ross Turner dated 27 March 2009Exhibit R6:Letter from Department of Defence to Sparke Helmore dated 1 April 2009
Exhibit R7:Bundle of documents – Summons material produced by Department of Defence on 11 March 2009
Exhibit R8: Full copy of DVO dated 19 February 1999
Exhibit R9: Letter dated 4 February 1998 from Army – Return of wills
Exhibit T1: ‘T’ documents (T1 – T73)
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