Desic and Repatriation Commission
[2011] AATA 407
•15 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 407
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5509
General Administrative DIVISION ) Re Diana Desic Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal
Senior Member Jill Toohey
Date15 June 2011
PlaceSydney
Decision The decision under review is affirmed
....................[sgd].............................
Jill Toohey
Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – claim for war widow’s pension – whether applicant a dependent of veteran – whether applicant in a de facto relationship with veteran – evidence of cohabitation – insufficient characteristics of de facto relationship – decision under review affirmed
Veterans Entitlements Act 1986 ss 5E, 11, 11A, 13
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
Re Tang and Director General of Social Services (1981) 3 ALN N 83 at 84
Re Pearse and Director General of Social Security (1983) 5 ALN N104
REASONS FOR DECISION
15 June 2011 Senior Member Jill Toohey
Introduction
1. Ms Diana Desic applied to the Repatriation Commission for a pension following the death on 7 January 2009 of Mr Ernest William Newman. Mr Newman was receiving a service-related disability pension when he died. Ms Desic claims she is entitled to a pension as Mr Newman’s de facto spouse of nearly 20 years.
2. The Repatriation Commission says that Ms Desic is not eligible for a pension because she does not satisfy the definition of dependent in the Veterans Entitlements Act 1986 (the Act). The Veterans Review Board (the Board) has affirmed that decision.
3. The sole issue in these proceedings is whether or not Ms Desic was Mr Newman’s dependent for the purposes of the Act.
The legislation
4. Section 13 of the Act concerns eligibility for pension. By s 13(2), the dependents of a veteran who has died may be eligible for a pension.
5. Dependent in the Act includes the partner of the veteran: s 11. Partner , in relation to a person who is a member of a couple , means the other member of the couple: s 5E(1) of the Act. By s 5E(2) of the Act, a person is a member of a couple if :
(b) all of the following conditions are met:
(i) the person is living with another person, whether of the same sex or a different sex (in this paragraph called the partner );
(ii)the person is not legally married to the partner;
(iii)the person and the partner are, in the Commission's opinion (formed as mentioned in section 11A), in a de facto relationship;
(iv)the person and the partner are not within a prohibited relationship.
6. In determining whether Ms Desic was in a de facto relationship with Mr Newman, regard must be had to all the circumstances of their relationship including, in particular, the financial aspects of their relationship, the nature of their household, the social aspects of their relationship, any sexual relationship between them, and the nature of their commitment to each other: s 11A of the Act.
Background
7. Ms Desic and Mr Newman met in 1989. From about 1990, they lived in Ms Desic’s house on her farming property. Mr Newman owned a house on the adjacent property which he had bought from Ms Desic’s former husband. Mr Newman’s property was let to a tenant.
8. On 28 May 1997, Ms Desic applied to the Department of Veterans Affairs (the Department) for a service pension on the basis that she was Mr Newman’s partner. Around the same time, Mr Newman advised the Department that he and Ms Desic were in a de facto relationship. It is not clear from the evidence what prompted Ms Desic’s application at this time or why she had not applied for a pension previously but nothing turns on this.
9. On 27 August 1997, the Department advised Ms Desic that the combined value of her and Mr Newman’s properties meant she was not entitled to a pension. The following day, Mr Newman telephoned the Department and advised that he had separated from Ms Desic that day. He confirmed his advice by letter on 29 August 1997.
10. On 10 September 1997, the Department wrote to Ms Desic advising that, as she and Mr Newman were separated, she was not eligible for any benefits, and asking her to complete a “Marital separation questionnaire”. The same questionnaire was sent to Mr Newman.
11. The completed questionnaires were received by the Department on 2 October 1997. Ms Desic’s form states that the separation took place on 29 August 1997 because of “continual disputes” and the prospects of reconciliation were “unknown”. Mr Newman’s form stated the separation took place on 28 August 1997 because of “in dispute finances” and the prospects of reconciliation were “unforseen”.
12. Ms Desic denies signing the questionnaire which purports to be from her and maintains that Mr Newman forged her signature. She maintains that at no time did they separate, that they continued to live together and share a bed until shortly before Mr Newman died.
Ms Desic’s claims for Centrelink benefits
13. Documents from Centrelink are before the Tribunal. They include a claim for renewal of Ms Desic’s Health Care Card, apparently signed by her and Mr Newman on 16 June 1997, which states they are “living in a marriage-like relationship”.
14. Also included is a document headed “Separation Details” apparently signed by Ms Desic on 4 September 1997 which states that she and Mr Newman separated on 29 August 1997. Ms Desic maintains she has never seen this form and did not sign it.
15. Another document, dated 28 November 1997, is an application by Ms Desic for Farm Family Restart Scheme payment. That part of the form which asked about her marital status has been left blank. A question which asks “Do you have a partner” is ticked “No”. Ms Desic does not dispute signing the form but maintains she did not tick that box.
16. Centrelink records show that, from May to November 1998, Ms Desic received Drought Relief Payment and then a Farm Relief Restart payment at the rate for a single person.
17. On 10 June 1999, Ms Desic completed an application for an age pension. She stated that her marital status was “divorced”. That part of the form which asks “About your partner” is left blank. Ms Desic has been paid the age pension at the rate for a single period since June 1999. She acknowledges that she received letters from Centrelink from time to time about her pension, and she was aware she was receiving payment at the single rate, but she either did not think about it at the time or was too busy to advise Centrelink of her relationship with Mr Newman. In any event, she says, she had to survive on something; her claim for a service pension had been refused and she had no income otherwise.
18. Ms Desic’s case is somewhat unusual in that, despite claiming and receiving Centrelink payments at the single rate for many years, she maintains that she was in a de facto relationship with Mr Newman up until his death. She is aware that a finding in these proceedings that she was in a de facto relationship may have implications for her age pension. However, she says she feels so strongly about Mr Newman forging her signature on the “Marital separation questionnaire” in September 1997 that she wishes to pursue this application.
19. A number of the Centrelink documents before the Tribunal were completed and signed by Ms Desic, and the handwriting and the signature on the “Marital separation questionnaire” looks no different.
20. Ms Desic gave her evidence before the Tribunal frankly even when doing so was against her own interests. I accept that she genuinely believes it is not her signature on the questionnaire. I accept that she regards her relationship with Mr Newman as de facto marriage and in some respects it was. However, for the following reasons, I am not satisfied that it had sufficient characteristics of a de facto relationship to bring her within the meaning of dependent in the Act.
Was Ms Desic in a de facto relationship with Mr Newman
21. Section 11A of the Act provides that, in forming an opinion about whether two people are living in a de facto relationship, regard is to be had to all the circumstances of the relationship, including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as being in a de facto relationship with each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and(iv) whether the people see their relationship as a de facto relationship.
22. Ms Desic gave evidence that she put work into maintaining the property Mr Newman owned next door to hers but, otherwise, they had no joint assets or liabilities. He did not improve “one single aspect” of her house, garage or land. He received rent from his tenant but did not pool it with Ms Desic. They maintained separate bank accounts and the accounts for their properties were in their separate names. She paid for all the utilities; Mr Newman occasionally contributed to the cost of groceries. She was paid Centrelink benefits and the single rate and he was paid his veterans pension at the single rate.
23. Ms Desic did all the work around the house, inside and outside. Mr Newman very occasionally helped indoors. She did all the cooking. She always cut his hair. Mr Newman had his own room where he kept his computer and his books and did cross-words. They shared a bed and Ms Desic says they had a regular sex life until not long before Mr Newman died.
24. Ms Desic gave evidence that, when they first met, she and Mr Newman would go out together. Over the years they would attend some family events together. For instance, he attended her daughter’s wedding and they always had Christmas with her family. Letters from Ms Desic’s son, daughter and daughter-in-law and from a local businessman confirm that she and Mr Newman lived together and that their relationship had some characteristics of a de facto relationship. I place little weight on those documents except to the extent that they confirm what Ms Desic has said in evidence. For instance the letter from Ms Desic’s son says that Mr Newman “played the role of grandfather” to his children and the letter from the business man say “it was obvious they both made decisions about the running of the farm and worked in partnership”. I accept that they genuinely had those perceptions but Ms Desic’s evidence paints a fuller and somewhat different picture of a man who generally kept to himself and had little regard for others including her.
25. It is difficult to gauge the extent of Ms Desic’s and Mr Newman’s commitment to each other. Clearly, from Ms Desic’s point of view at least, it was not a very sustaining relationship. In a written statement in 2009 in support of her application, she wrote that “more than 12 years ago I realised the relationship was most unsatisfactory so I asked Bill for a different path. He wanted $20,000 to move out and as I had already paid so much to complete my settlement with my former husband, I decided to put all my energies into the farm, rather than have another court case”. I note that this appears to coincide roughly in time with the marital separation questionnaires. I note, too, that whereas Ms Desic was apparently referred to in Mr Newman’s 1992 Will as his “companion” and was provided for, his 2007 Will, a copy of which is before the Tribunal does not mention or provide for her.
26. In the same statement, Ms Desic wrote that Mr Newman had six major operations in the 19 years they lived together. She nursed him through all of them but, when she needed 24-hour bed rest, he ignored her needs and, generally, she got very little emotional response from him. Before the Tribunal she agreed that it could be said that he had found a convenient residence with her and an arrangement that suited him.
Consideration
27. The term “marriage-like” has been replaced by “de facto” in the Act; however, authorities that apply the term “marriage-like” remain relevant in determining whether a de facto relationship exists.
28. The total picture of a relationship must be considered, bearing in mind those factors which weigh against a marriage-like relationship and those which weigh in favour of it, and no one factor will be determinative: Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
29. The Tribunal has noted previously that, while the subjective belief of the parties about the nature of their relationship is important, the Tribunal should look primarily to “the objective indicia which the relationship exhibits”: Re Tang and Director General of Social Services (1981) 3 ALN N 83 at 84; see also Re Pearse and Director General of Social Security (1983) 5 ALN N104.
30. Taking into account all of the evidence, I am not satisfied that Ms Desic and Mr Newman were in a de-facto relationship after 1997. I make no finding about whether they were in a de facto relationship before then. The Board thought they were but there is insufficient evidence before me to reach a conclusion about that period. In any event, things appear to have changed around 1997 and, if they had been in a de facto relationship before then, they no longer were after 1997.
31. I accept that Ms Desic genuinely regards the relationship as de facto even if it was not very satisfying emotionally. I accept that it had some characteristics of a de facto relationship in that she and Mr Newman lived in the same house and had a sexual relationship, and she provided for him in many ways, but that was the extent of it. They remained independent of each other financially and shared little, if anything emotionally, socially or otherwise. I am satisfied that they represented themselves to Centrelink and the Department as single people for many years because that was in fact the nature of their relationship.
32. I affirm the decision under review.
I certify that the 32 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member TooheySigned: ...................[sgd].........................................................
Diana Weston AssociateDate of Hearing 27 May 2011
Date of Decision 15 June 2011
ApplicantSelf-represented
Representative for the Respondent Ted Harrison, Department of Veteran’s Affairs
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