Dietman and Repatriation Commission (Veterans' entitlements)
[2019] AATA 4428
•31 October 2019
Dietman and Repatriation Commission (Veterans' entitlements) [2019] AATA 4428 (31 October 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/6236
Re:Clarence Dietman
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:31 October 2019
Place:Brisbane
The decision under review is set aside and the matter is remitted to the Repatriation Commission to give effect to the terms of this decision.
...........................[SGD].............................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – whether veteran should be paid a service pension at the single rate – whether veteran is a member of a couple – financial aspects of the relationship – the nature of the household – social aspects of the relationship – sexual relations between the people – the nature of people’s commitment to each other – veteran not living together in a de facto relationship – decision to reduce service pension set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Veterans’ Entitlements Act 1986 (Cth)CASES
Australian Postal Commission v Hayes (1989) 23 FCR 320
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Gorman & Gorman [2017] FCCA 3187
Lynam v Director-General of Social Security (1983) 1 AAR 197
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Warden t/as RCW Plumbing & Excavations v Camporeale Holdings Pty Ltd [2016] QCAT 12REASONS FOR DECISION
Deputy President J Sosso
31 October 2019
INTRODUCTION
Dr Clarence Dietman seeks a review of a decision of a Delegate of the Repatriation Commission (the Commission) of 13 September 2018 (Exhibit 1 T11 pp. 63 – 71), which affirmed a decision of 25 May 2018 that he was a member a couple as defined by
s 5E(2)(b) of the Veterans’ Entitlements Act 1986 (Cth) (the Act) from 9 November 2002 with a consequent reduction of his service pension – Exhibit 1 T7 pp. 47 – 53.
Dr Dietman was born in 1926 and at the date of the Hearing was 93 years of age. On
31 August 2005, Dr Dietman completed a claim for a service pension and in response to a question about his marital status he answered that he was divorced and did not provide any details to suggest that he was partnered with any other person –
Exhibit 1 T3 pp. 9 – 10.
Dr Dietman practised as a General Practitioner for approximately 40 years in South Australia and then on the Gold Coast from 1995 – Exhibit 2 ST6 p. 135. He continued to work on a full-time basis until 1 January 2005 – Exhibit 2 ST7 p. 147.
Dr Dietman has been paid a service pension at the single rate since 2005 – Exhibit 1 T11 p. 65.
Dr Dietman owns his home which is located at Broadbeach Waters, Queensland. Since
9 November 2002, Ms Christine Hanrahan has been living in these premises with
Dr Dietman – Tr. 15 August 2019 p. 18. Ms Hanrahan is divorced and retried at Christmas 2017, having worked with the Endeavour Foundation since July 2000 as an Employment Coach – Exhibit 4.
On 25 October 2011, Dr Dietman completed a statement of circumstances questionnaire in which he answered that he was single and did not have a partner nor was living in a marriage-like relationship – Exhibit 1 T4 p. 34.
On 6 April 2018, Dr Dietman wrote to the Commission in the following terms –
Exhibit 1 T5 p. 45:
“I WISH TO ANNOUNCE THAT CHRISTINE RUBY HANRAHAN, DIVORCEE, AND I HAVE BEEN PARTNERS AND HAVE BEEN LIVING TOGETHER SINCE 9.11.02…
P.S. SINCE 22.12.17 SHE HAS BECOME MY CARER AS MY SERVICE DISABILITY OF SPINAL STENOSIS HAS WORSENED. PLEASE SEND ME THE FORMS TO APPLY AS A CARER.”
Not surprisingly, this letter set off a chain events commencing with the Commission reviewing Dr Dietman’s personal and residential situation. As noted above, on 25 May 2018, a Delegate of the Commission informed Dr Dietman that his circumstances had been updated following receipt of his letter of 6 April 2018. Dr Dietman’s service pension, payable at the single rate, was reduced to a member of a couple rate (partnered rate) effective from 5 June 2018.
Dr Dietman responded in a short letter of 10 June 2018, in which he sought to correct two issues concerning his assets, but he did not comment on the decision to pay him a partnered rate pension – Exhibit 1 T6 p. 46.
On 28 June 2018, Dr Dietman requested a reconsideration of the 25 May 2018 decision and provided the following reasons – Exhibit 1 T8 p. 54:
“(1) CHRISTINE HANRAHAN HAS ONLY BEEN A CLOSE COMPANION SINCE 9.11.02. I DON’T KNOW IF YOUR DEPARTMENT CONSIDERS THIS AS A PARTNERSHIP OR DEFACTO RELATIONSHIP BUT THERE HAS BEEN NO SEXUAL RELATIONSHIP.
(2) SINCE SHE RETIRED ON 22.12.17 SHE HAS BECOME MY CARER DUE TO A DETERIORATION OF MY SPINAL STENOSIS DISABILITY.
(3) PRIOR TO THIS I PREPARED ALL MY MEALS EXCEPT ON FRIDAY NIGHTS WHEN SHE HAD MORE TIME TO COOK.
(4) WE HAVE SEPARATE BEDROOMS.
(5) MY WILL POINTS OUT SHE CAN LIVE ON AT 42 COCOS CRESCENT WHEN I DIE PROVIDING SHE PAYS THE RATES ETC.
(6) I REALLY ASKED FOR A CARER’S FORM FROM THE DEPT. IN MY LETTER OF 6.4.18 – I STILL AWAIT IT.
(7) CHRISTINE IS NOT INTERESTED IN SIGNING THE STATEMENT OF CIRCUMSTANCE YOU SENT ME. WHICH I PRESUME WOULD CONSOLIDATE A SO CALLED DEFACTO RELATIONSHIP.
PS THE TERMS COMPANION AND PARTNER ARE SYNONYMOUS IN MY SITUATION.”
Ms Caisee Nielsen, an Officer of the Department of Veterans’ Affairs, had a telephone conversation with Dr Dietman and Ms Hanrahan on 23 August 2018. The following file note records Ms Nielsen’s recollection of the conversation – Exhibit 1 T9 pp. 55 – 56:
· Clarence advised that Christine was his companion and she helps care for him. Family and friends do see them as partnered
· Clarence enquired if Christine would be granted the WW pension should he pass away, I said that this was likely as she was now recognised as being his partner
· I explained to Clarence that he is in receipt of the partnered rate now and if he does not agree with this decision made in May 2018 he could appeal the decision however he would need to do so quickly as the 3 month appeal period was up in a couple of days. Clarence is aware the debt management unit is investigating a possible large overpayment of service pension
· Christine confirmed that family and friends see them as partnered
· I asked Christine how she would describe her relationship with Clarence and Christine confirmed that Clarence was her partner and had been for many years but there is no intimacy. I advised Christine that there are many other aspects that the department considers when making a determination about people living in a defacto relationship
· I asked Christine if she was paying rent to Clarence and she confirmed she was not and never had. Christine said many year ago she had limited funds following her divorce and went to live with Clarence in his property and has lived with him ever since. I explained this could be seen as Clarence financially supporting her as his partner
· Christine said she did not know why Clarence asked about war widows pension, she does not want it
· Christine and Clarence may appeal the decision for the department to regard them as partnered…”
On 23 August 2018, Dr Dietman again wrote to the Commission. In his letter Dr Dietman stated he wanted to “set the record straight” about his relationship with Ms Hanrahan, and provided the following information – Exhibit 1 T10.1 p. 62:
“1. I have known Christine for over 16 years. We have a platonic friendship only.
2. I offered her sanctuary in my home on 09/11/2002 indefinitely free of charge as a friend and companion.
3. We have separate bedrooms and ensuites.
4. We each have our own bank accounts.
5. We buy our own food.
6. Christine has been preparing evening meals on Fridays and Saturdays. She pays for one meal and I pay for the second meal.
7. We dine out Wednesday nights and Sunday lunches. She pays for Wednesdays and I pay for Sundays.
8. I prepare all other meals for myself.”
On 13 September 2018, Mr Greg Heitsch, Service Pension Review Officer, affirmed the 25 May 2018 decision. The following concluding reasons were given – Exhibit 1 T11 p. 71:
“Having fully considered the evidence in this case, particularly the initial letter received on 11 April 2018 from Mr Dietman where he sated that he and Ms Hanrahan had been partners and living together since 2002, and the confirmation during the phone call on 23 August 2018 from both parties that they were partners, I am satisfied that Mr Dietman is a member of a couple as defined in subsection 5E(2)(b) of the VEA.”
Upon being notified of this decision, Dr Dietman wrote to the Commission on 1 October 2018, in the following terms – Exhibit 1 T13 pp. 73 – 74:
“The following factors reveal we are only companions:-
· We do not have any joint ownership of real estate or other major assets
· We do not have any significant pooling of financial resources – we don’t have each other’s pin number or account numbers.
· We do not share any day to day household expenses – e.g. Food – I get my own food and cook my own food.
· All of our friends know that we are not living together – just companions. I have my doctor friends and Christine has her own friends. We will get them to sign the form in front of the Justice of the Peace if necessary.
· Christine’s mum lives out at Earle Haven home and we go out every Wednesday night to have dinner with her. It is only an hour at the most and Christine pays for the dinner. She has been going out to dinner with both of her parents for about ten years. As Christine retired last Christmas, she asked me along this year. What is wrong with that?
· On a Sunday, we go out with my friends for lunch. What is wrong with that?
· We are strictly companions and we are prepared to place our hands on a stack of Bibles to affirm same.
· The only time we kiss is when we give presents to each other at Christmas and birthdays.
· I never put my arm around her nor hold her hand when we are together, and likewise, she.
· We perform our own laundry and ironing
· We each have our own car and we pay for the registration and insurance by ourselves and I go out to various functions by myself and she goes out to functions by herself.
· I often do not know where Christine is unless she tells me. She might have a boyfriend for all I know – that is her private business – so how can you label us as de factos?
· We are strictly platonic in our friendship
· Christine has done me a great favour by living here – I go down to Adelaide to see my daughters and go to my medical meetings, political meetings, the Probus meetings and the Navy meetings.
· Christine has no ambition of becoming a war widow, and, to suggest it was my motive when I wrote to you last April, is libellous.
· Christine and I are breaking no democratic laws by living under the same roof peacefully, but, you seem to think otherwise.
· Christine and I feel that we have no reason to complete the ‘Statement of Circumstances’ as we are neither in a de facto relationship nor partnership as you deem it.
· I pay all the electricity and water bills”
LEGAL FRAMEWORK
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 the 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 “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.
In forming an opinion for the purposes of the Act about 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) provisions is of assistance when properly applying s 11A.
In Lynam v Director-General of Social Security (1983) 1 AAR 197 (Lynam), Fitzgerald J made the following observations (at 199 - 200):
“In Lambe’s case…the Full Court expressly rejected the proposition that an absence of adequate financial support was of determinative significance in deciding whether an applicant for a supporting mothers benefit under Pt IV AAA of the Act was a ‘supporting mother’…
The question here as it was in Lambe’s case is whether the relationship between a man and a woman who are not legally married is such that they are living together as husband and wife on a bona fide domestic basis. In Lambe’s case, the Full Court said that all facets of their interpersonal relationship need to be taken into account and that their financial relationship, although important, is only one of a number of relevant matters. I am unable to perceive how any difference of approach is warranted in the context in which it arises in this case…
It is easy to see that an absence of financial support may, in some circumstances, afford evidence that the relationship in question does not exist, although, of course, even in institutional marriage, there have always been a wide variety of financial arrangements and it seems a reasonable inference that increased flexibility has resulted from the greater financial independence now enjoyed by many women and the less structured roles which the sexes play in current society in this country.
Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of the relationship. Their materiality, like each of the other element’s of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”
The factual matrix of Lynam is also instructive. Mr L shared a residence with Mrs C which they had jointly purchased with a third person. They equally shared household expenses until Mr L’s unemployment benefit was cancelled and they denied any sexual or social relationship. Mr L and Mrs C remained friends, but their friendship was strained because Mr L could not afford to leave and Mrs C did not have the funds to purchase his share of the house. The Department formed the view that they were in a de facto relationship because of Mr L’s total financial dependence on Mrs C and that their residence was jointly owned.
It was in this context that Fitzgerald J warned of the error that would be committed by a decision-maker if there was an over-reliance on proven financial dependence (or, indeed, any other single factor).
Another helpful Federal Court decision is that of O’Loughlin J in Staunton-Smith
v Secretary, Department of Social Security (1991) 32 FCR 164.In that case Mrs L had three children from her first marriage, including a young child requiring full care and attention. Mrs L’s second marriage to Mr P only lasted eight months and they then separated. Eight years later Mrs L returned to live in Mr P’s house as a matter of convenience and because Mr P 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 of an evening. Mrs L 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 to 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 that 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 (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 bonda 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?”.
Finally, reference can also be made to the decision of French J (as he then was) in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 (Pelka).
Ms P 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 K with whom she shared her apartment.
Ms P separated from her husband in 1986 and finally divorced him in 2003. In 1985 she met Mr K, and in accordance with Chinese culture they became god-brother and
god-sister.
In 1988, Ms P purchased a two bedroom apartment and Mr K house-sat it whilst she travelled overseas for an extended holiday. On her return Mr K 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 K would pay the cost of Ms P’s airfares and accommodation when she travelled overseas. During this time Ms P paid off the mortgage on her apartment whilst Mr K paid for the telephone, electricity and gas bills.
Ms P stated that she did not have a sexual relationship with Mr K, they did their own washing and she provided food for him when she cooked more than she needed.
Ms P and Mr K travelled overseas approximately once per year and booked a twin share hotel apartment in order to save money. Ms P paid for her own shopping trips.
Ms P and Mr K did not have joint bank accounts and would occasionally go to the movies. Ms P did not tell her friends she was in a relationship with Mr K. They lived separate lives and days would go by without them seeing each other. Ms P took no notice of Mr K’s private life and it was a matter of convenience that they lived in the same apartment.
Ms P stated that she did not pool resources with Mr K except when they were on holidays and she did not know she was the beneficiary of his will, superannuation and life insurance policies.
Mr K said the relationship was “separate and apart”, that he did not tell Ms P what he was doing and would often stay away with lady friends. He agreed that he had never had sex with Ms P and did his own cleaning.
Ms P had cared for a Mr W since 2000, and had been away with him on a number of business trips, including a three month trip around Australia. When Ms P moved into the house, she cared for Mr W and received carer payments. In the three years (2000 – 2003) she had 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 K 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 – ([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 these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
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;
(e) 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 s 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 about whether a de facto relationship exists, 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:
(i) There was no question of any joint responsibility for providing care or support of children.
(ii) 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.
(iii) 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.”
THE HEARING
A Hearing was convened in Brisbane on 15 August 2019.
Dr Dietman was unrepresented and appeared by telephone from his Gold Coast home. The Commission was represented by Mr J Watts of the Australian Government Solicitor.
Dr Dietman gave evidence and was cross-examined by Mr Watts. The only other person who gave evidence was Ms Hanrahan who also appeared by telephone and was
cross-examined by Mr Watts.
Leave was given to the parties to provide closing submissions in writing of no more than five pages in length. The Commission subsequently provided its closing submissions in a document dated 29 August 2019 and entitled Respondent’s Closing Submissions (RCS). Dr Dietman subsequently provided his closing submissions in a document dated
7 September 2019.
Attached to Dr Dietman’s closing submissions is a Statement in his name witnessed by a Justice of the Peace (Qualified) and dated 23 August 2019.
In a submission to the Tribunal dated 24 September 2019, Mr Watts objected to the tendering of this document. Mr Watt’s submission and the Tribunal’s decision on whether to consider Dr Dietman’s statement is set out below.
EVIDENTIARY MATTERS
Mr Watts pointed out that Directions made by the Tribunal required Dr Dietman file any witness statements in support of his application by 1 August 2019. Despite this, and after the conclusion of the Hearing, Dr Dietman now seeks to introduce new evidence.
Whilst recognising that the Tribunal has the inherent discretion to grant leave to a party to file evidence after the conclusion of a Hearing, this discretion must be exercised in accordance with relevant legal principles. Further, the Tribunal also notes that such a discretion, unless it be by the consent of the parties, is one that should be exercised sparingly and having regard to the possible prejudice it may inflict on the other party.
Mr Watts submits that leave should not be granted as it would result in a denial of procedural fairness to the Commission. This would be so, Mr Watts submits, as it would deprive the Commission of the fundamental right to test that evidence. Further, the evidence in question (in the form of a statement by Dr Dietman) could, in Mr Watt’s submission, have been obtained at the Hearing with due diligence. In the circumstances, it is contended, that Dr Dietman had ample opportunity to file any statement before the Hearing.
Finally, Mr Watts submits that admitting new evidence outside the timeframes mandated by the Tribunal results in all parties, and the Tribunal, incurring additional costs and has flow-on delays for other applicants who are awaiting their matters to be determined.
In support of these propositions Mr Watts drew the Tribunal’s attention to a decision of the Federal Circuit Court (Gorman & Gorman [2017] FCCA 3187) and a determination of the Queensland Civil and Administrative Tribunal (Warden t/as RCW Plumbing & Excavations v Camporeale Holdings Pty Ltd [2016] QCAT 12).
While the Tribunal accepts the correctness of the submissions of Mr Watts rather than relying on the authorities highlighted by Mr Watts, the Tribunal prefers to rely upon the general principles enunciated by Wilcox J in Australian Postal Commission v Hayes (1989) 23 FCR 320 (Hayes), which were subsequently endorsed by Gyles J in Australian Postal Corporation v Bessey (2001) 32 AAR 508.
His Honour Justice Wilcox in Hayes made the following observations (at 326):
“Although s 33 gives to the Tribunal a wide discretion as to the procedure to be adopted in reviewing a decision, it is clear that the Tribunal is bound to accord to the parties natural justice; or, as the concept is now more frequently called, procedural fairness. The principles enunciated by the High Court of Australia in Kioa v West (1985) 159 CLR 550 apply…An essential ingredient of procedural fairness is the opportunity of presenting one’s case…In Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Deane J expressed the view that s 39 of the Administrative Appeals Tribunal Act ‘constitutes statutory recognition of an obligation which the law would, in any event, imply. Where a tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe’.”
In this case the Tribunal directed that film taken of one of the parties during a period when she was alleged to be suffering from work-related injuries must be shown to the party at the commencement of her evidence in chief. Wilcox J said (326):
“The question then, in the present case, is whether the direction given by Dr Hayes in relation to the film held by the Commission was a direction which denied to the Commission procedural fairness…
The case put by counsel for the Commission is that the effect of the direction given by Dr Hayes will be to impede the presentation by their client of its case. Counsel argue that the opportunity of presenting a case, in any inter parties litigation, involves not merely the opportunity of adducing one’s own evidence but also the opportunity of testing the opponent’s evidence…
Counsel argue that the testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material; it is not enough that the party against whom the evidence is led has the right to present evidence in reply. Moreover, although counsel accept that there exists some discretion to control the cross-examination so as to ensure relevance and to guard against repetition and prolixity, it is said that the right to cross-examine means the right effectively to cross-examine. If directions given by a court or a tribunal have the effect of so fettering cross-examination that a witness’ evidence cannot properly be tested, procedural fairness has been denied…”
The analysis of Wilcox J is instructive and clearly explains the obligation placed on the Tribunal to accord procedural fairness to the parties. Procedural fairness is, of course, an elastic concept and its boundaries can only be practically determined on a case by case basis. However, it is manifestly clear that when ample opportunity is afforded to the parties to present evidence, and then for that evidence to be tested at a Hearing, it is not appropriate for one party to seek to adduce new evidence after a Hearing, thereby preventing the other party from being able to test that evidence.
There is a clear distinction that can be drawn from the situation where a party obtains possession of a document after a Hearing which is relevant to the review. In such a situation the provisions of s 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) apply. In short, the Administrative Appeals Tribunal Act 1975 (Cth) imposes an ongoing requirement for parties to assist the Tribunal by lodging relevant material, even at a late stage, if it comes to their attention.
In these circumstances, to allow Dr Dietman to lodge further evidence which is not subject to being tested by the Commission, would result in a denial of procedural fairness to the Commission. The Tribunal does not grant leave to Dr Dietman to file his Statement of
23 August 2019 and the contents of the Statement have not been taken into account in reaching this decision.
CONSIDERATION
Introduction
As explained by French J in Pelka, the Tribunal is required to have regard to the interpersonal relationship of Dr Dietman and Ms Hanrahan as a whole, and is not limited to a consideration of the factors contained in s 11A.
However, it is fundamental in correctly applying the law that the Tribunal have regard to each of the factors contained in s 11A.
The Tribunal is required to engage in a weighing exercise and to carefully weigh those factors that point towards a de facto relationship against those that do not. In reaching a conclusion the Tribunal must consider the “total picture” as disclosed by the evidence, and in that regard appropriately evaluates objective as well as subjective considerations.
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.
The Tribunal will also consider any other relevant factors, and then reach a conclusion after evaluating and weighing all of the evidence presented.
(a) Financial aspects of the relationship
(i) Joint ownership and joint liabilities
In correspondence to the Tribunal of 22 October 2018 (Exhibit 1 T1 p. 1) and to the Commission of 1 October 2018 (Exhibit 1 T13 p. 73), Dr Dietman asserted that he did not jointly own any real estate or other major assets with Ms Hanrahan.
When questioned at the Hearing, Dr Dietman testified to the correctness of this –
Tr. 15 August 2019 pp. 10, 14.
Dr Dietman’s testimony, in this regard, has not been challenged by the Commission.
(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.
Dr Dietman asserted (Exhibit 1 T1 p.1, T13 p. 73) that not only was there no pooling of financial resources between himself and Ms Hanrahan but “we don’t have each other’s pin number or account numbers”. In short, Dr Dietman contends that there is no intermingling, let alone pooling, of his financial resources with those of Ms Hanrahan.
Dr Dietman testified to the same effect (Tr. 15 August 2019 pp. 10, 14), and this testimony was not challenged by the Commission.
(iii) Any legal obligations owed by one person in respect of the other person
No evidence was presented that there are any legal obligations owed by either
Dr Dietman in respect of Ms Hanrahan or vice versa and Dr Dietman testified that there were no such obligations – Tr. 15 August 2019 p. 14.
(iv) Sharing of day-to-day household expenses
Dr Dietman asserted on 22 October 2018 that he and Ms Hanrahan “do not share any day to day household expenses – e.g. Food – I get my own food and cook my own food” – Exhibit 1 T1 p. 1.
Dr Dietman testified at the Hearing that “We pay each other’s way. She has to get my – I can’t go to the supermarket now, she goes, but it’s all separate still” – Tr. 15 August 2019 p. 14.
Whilst the evidence discloses that Ms Hanarhan pays for her groceries, it is not contested that Ms Hanrahan (Tr. 15 August 2019 pp. 13, 33):
(a)does not pay rent;
(b)does not contribute to the payment of rates; and
(c)does not contribute to the payment of water and electricity bills.
Dr Dietman has also provided in his Will that after his death Ms Hanrahan can continue to reside in his property for the term of her natural life – Exhibit 1 T8 p. 54, Tr. 15 August 2019 p. 19. Dr Dietman provided the following explanation of this disposition – Exhibit
3 (letter dated 15 February 2019):
“My will clearly states that Christine can continue living in my house for the rest of her natural life unless she remarries or acquires a ‘live-in’ partner. In addition, she must pay all rates and taxes and upkeep the property. My son, Matthew Dietman, inherits the property – he is quite happy with this arrangement. He is married and lives and works in America as a commercial pilot, indefinitely.”
Dr Dietman was also cross-examined by Mr Watts about his Will, and he gave the following response – Tr. 15 August 2019 pp. 26 – 27:
“Yes. You were saying before that your will provides for Ms Hanrahan to live in your property when you die provided she pays the rates and some other criteria are satisfied?---Yes. Yes, well, my son will all inherit it. I’ve left it to my son with that proviso because – and my son’s quite happy with that. And he lives in America now so, I mean, it’ll be a good – when he comes back to Australia, if ever he does – he had to go to America to get a job satisfaction as a pilot. He’s a pilot. And he couldn’t get a satisfaction job. He was getting nowhere in Darwin, so he went to America. Got a job and he’s happy as Larry….flying the planes he wants to and so I don’t know when he’s coming back. He’s over there indefinitely. So I wanted – so she’s prepared to live on here because I surely will die before she does. You know, I’m on – I’m on the way out now. I get so short of breath.”
(b) The nature of the household
(i) Joint responsibility for care of children
Dr Dietman has three adult children, two from his first marriage and one from his second. None of the adult children require the provision of care or support.
On the contrary, Dr Dietman testified that one of his daughters regularly cooks meals for him and Ms Hanrahan – Tr. 15 August 2019 p. 28:
“My daughter, she comes over here as a guest and she takes over the kitchen. We don’t say anything. She doesn’t have to but she does. It’s just part of her…”
Ms Hanrahan had two adult sons who live independently of her – Tr. 15 August 2019
p. 18.
Accordingly, neither Dr Dietman nor Ms Hanrahan play any role in the care or support of their adult children.
(ii) Living arrangements
Dr Dietman lives in a four-bedroom two level home. By 2008, Dr Dietman had converted a downstairs room into a bedroom and bathroom in anticipation of the time when he could no longer manage stairs – Exhibit 2 ST7 p. 148.
Dr Dietman and Ms Hanrahan have their own separate bedroom with separate bathroom and toilet facilities – Tr. 15 August 2019 p. 13.
This arrangement has existed throughout the time Ms Hanrahan has lived in Dr Dietman’s house.
Although they share the kitchen, dining and entertainment areas of the house, both testified that on most evenings they would eat their dinner alone, with Ms Hanrahan retiring to her bedroom and Dr Dietman eating whilst watching television.
Dr Dietman testified that despite his advanced years until recently he usually prepared his own meals and had dinner by himself – Tr. 15 August 2019 pp. 28 - 29:
“You and Ms Hanrahan have meals together?---No. I get my own meals and even now I get my own breakfast. But she gets – she prepares a – she has some frozen food for me. On a night she might cook it since she’s become a carer…But before she was a carer, she did no…she didn’t cook any meals…I don’t know when she had her breakfast even now. I never see her having breakfast. And lunch, I don’t know what – I certainly don’t have lunch with her. Evening meals, she might be eating something and I might start eating something, but never often together. But she had a different – she had a different diet to me, you see. No, we don’t eat the same food by any means….I can get little meals. I can poach eggs in the morning and I can eat….all I have for lunch is some – I used to have smoked oysters. Now I have smoked salmon because it’s plenty of protein in it, but I can’t eat anything raw.
Would you agree, Doctor, if it wasn’t for yours and Ms Hanrahan’s respective dietary restrictions, you would have most meals together?---No, we wouldn’t have any – we would hardly have any meals together apart from when we go out on Wednesday and Saturday nights. That’s before she became a carer….”
Ms Hanrahan testified that after retiring and taking on the role of carer she got Dr Dietman “whatever he wants for tea. He only has a sandwich” – Tr. 15 August 2019 p. 34. However, she went on to testify that they do not have dinner together – Tr. 15 August 2019 p. 35:
“When you cook those meals for Dr Dietman, do you two sit down and have meals together?---No. He has – I give it to him and I can easily have my dinner before him or after, you know. Sometimes I have it in my bedroom because I’ve got a jug and I wouldn’t mind rice. He doesn’t like rice. So, you know, I – we – I just – we never sit at the table. He has it in front of the TV.”
In 2008, Dr Dietman informed the Veterans’ Review Board that he and Ms Hanrahan prepared their own meals, and that he cooked himself simple meals such as chops and drumsticks – Exhibit 2 ST7 p. 148.
(iii) Housework
For a number of years Dr Dietman’s poor state of health has precluded him from performing most manual tasks. Dr Dietman has a range of both physical and psychological ailments that, cumulatively, have deleteriously impacted on his lifestyle – Exhibit 2 ST7 p. 147.
When Dr Dietman appeared before the Veterans’ Review Board in 2008 he was
82 years of age and he stated – Exhibit 2 ST7 p. 148:
(a)he had not washed the car for many years;
(b)he did some light housework but he became giddy and had falls;
(c)Ms Hanrahan did most of the heavier housework; and
(d)he could do some light pruning and gardening while sitting on a box, but could not longer mow the lawn and could not climb ladders.
Since her retirement, and with the ongoing decline in Dr Dietman’s health, Ms Hanrahan has taken on the role of carer for both Dr Dietman and, to a lesser degree, her 99 year old mother who lives in a retirement complex. When she was asked what this entailed for
Dr Dietman, Ms Hanrahan provided the following response – Tr. 15 August 2019 p. 34:
“Well, I wash his sheets. I get whatever he wants for tea…I go to the supermarket every week, every Thursday. I go and pick his groceries up and bring it back…I do, you know, a bit of housework and that sort of thing…
You have completed most of the heavier housework for some time, haven’t you?---Yes, but he doesn’t – you know, he doesn’t really know – he just goes out into the garden and does his thing while I do, you know, probably on the weekend when I can have a bit of time. But now I can do it all the time now, so yes.”
Ms Hanrahan is not paid for performing these household services and she testified “I’m so pleased that I can have a roof over my head” – Tr. 15 August 2019 p. 34.
(c) Social aspects of the relationship
(i) Do Dr Dietman and Ms Hanrahan hold themselves out as being in a de facto relationship?
The only evidence of either party holding themselves out as being in a de facto relationship is to be found in the following documents:
(a)
Dr Dietman’s letter of 6 April 2018 when he “announced” that he and Ms Hanrahan had been “partners” and “living together” since 9 November 2002 – Exhibit 1 T5
p. 45;
(b)
The notes of the telephone conversation with Ms Nielsen of 23 August 2018, where Dr Dietman advised that Ms Hanrahan was “his companion” and
Ms Hanrahan described Dr Dietman as her “partner” – Exhibit 1 T9 p. 55; and
(c)
In a Disability Pension Claim form dated 6 July 2016, Dr Dietman ticked the
“De-facto” box in the Question relating to his relationship status – Exhibit 2 ST9
p. 166.
The first matter to note is that there was some dispute at the Hearing about what
Dr Dietman actually meant by using the term “partner”.
During cross-examination, Mr Watts drew to Dr Dietman’s attention the wording of his letter of 6 April 2018, and the following exchange occurred – Tr. 15 August 2019
pp. 19 – 21:
“Yes?---Yes, well, I define, you know, our platonic friendship as partners. I mean, you have a partner, a dance partner, you have other partners. I just – but didn’t know that you define a partner as a couple. I wouldn’t have used that bloody term.
You made that announcement to the department because you considered this relationship was something the department should know about in managing your pension entitlements, didn’t you?---Yes, well, I said since she’d – since she had become my carer and my services, please send me the forms to apply as a carer. I just wanted to know, you know, my situation, you know, if she was a friend and I die, would she get a – you know, would she become a war widow. But they’ve told me no. But then I – so I said, ‘Well, if not, send me a copy – you know, forms for a carer, because I was getting that way that I needed a carer, you see. This has gradually been coming on in the last six years. I’ve just become a – you know, a bloody – nearly a paraplegic. I’ve lost all my – I’ve got fatty degeneration in my muscles, so that’s why I use the – because I used the word ‘partner’, which I didn’t take as being a couple, de facto or a relationship or, you know – I now – we now call ourselves platonic friends….
MR WATTS….In that letter we were just talking about, you did tell the department, just quoting you, that you have been partners and have been living together. You meant that you were more than housemates, didn’t you?---No, being partners and living together, partners. We’re just friends, that’s all. She was my guest.
If you wanted to tell the department you were just living together, couldn’t you have just said, ‘We have been living together’?---Well, I could have said but, I mean, my definition of partner was a friend. As I say, I was thinking you can have a partner, a dancing partner, you can have a partner in business. You can have plenty of partners…You don’t have to be a de facto.”
Ms Hanrahan was also questioned about whether she held herself out as being in a
de facto relationship with Dr Dietman. She vehemently denied that at any stage in the twelve years she has resided with Dr Dietman did she regard herself as being in a de facto relationship with Dr Dietman. Ms Hanrahan also denies that she held out to family or friends that she was in such a relationship.
The following exchange between the Tribunal and Ms Hanrahan is instructive –
Tr. 15 August 2019 pp. 36 – 37:
“How would you describe your relationship with Dr Dietman?---Well, Dr Dietman is – he’s not very well now, so, you know, I’m very sad. You know, his daughter and grandchildren come up this week, so I think that’s – and they’re very, very good. They come and stay here. They’re – we’re only friends and they – his daughters and their grandchildren, they know that we are not a de facto relationship. We’re only friends.
So how would you describe your relationship with Dr Dietman?---Friendly. He is a friend. He’s nothing else.
I presume you would feel a great degree of gratitude to him that he has allowed you to stay in his home?---Yes. Thank you. But now I really could not leave because I’m sort of obligated, but not obligated. He’s so nice to me, to have the roof over my head.
Do you regard him as a father figure?---No, no. Well, he’s not very – he’s probably 10 years younger than my father but, no, he’s not. He’s a friend and a he’s a doctor and he’s so respected, yes….
In the time you have been living with him, there has never been any romantic attachment?---No, no, no. And, you know, I had a few lovers and, you know, he has a couple…
But all I am asking is, in the time you have been living with Dr Dietman, there has been no de facto relationship in the sense of sexual relations?---No way. No way.
In the time you have been living with Dr Dietman, would you say that the relationship could be characterised as a platonic friendship, if you know what I mean?---Yes, yes. You know, we’re only friends. That’s all. We’re friends…
Okay. So, when Dr Dietman characterised in that letter that started this process when he---?---Yes, I don’t even know he wrote the letter. I could’ve killed him….”
First, after reading relevant extracts from the letter of 6 April 2018 the following exchange occurred – Tr. 15 August 2019 pp. 37 – 38:
“What do you say to that?---I feel like a – excuse me – but bloody fool to – if he had only asked because I wouldn’t have – I wouldn’t have – I can’t – what he – what he says---…
Did he ever say to you why he said that you and he were partners?---I had – I said to him plenty of times, ‘I can’t believe that you’ve done that’. I feel terrible.
Did he say that he was trying to do the right thing by you and, in the process, has created unnecessary problems?---Yes, he said he’s sorry and – but I can’t – I still forgive him but I think some – I don’t know whether I can really forgive him.”
Second, turning to the claim form of 2016 wherein Dr Dietman ticked the de facto box, the following testimony was given by Dr Dietman during cross-examination by Mr Watts –
Tr. 15 August 2019 p. 26:
“And there with relationship status, you’ve ticked you’re in a de facto relationship, haven’t you?---Yes, I don’t know – I didn’t – it should’ve been divorced or widowed, one of the – divorced, I suppose. That’s what it is anyway.
I am going to suggest that you ticked de facto because at the time of completing that form you considered that best described your relationship status.---No, well, it’s a mistake. I just ticked the wrong box. Now, when you’re a lawyer, you pick these things. It didn’t occur to me. I never – I never remember putting that, no. I certainly would’ve put divorced – usually I put divorced for my relationship status.”
When Ms Hanrahan was questioned about Dr Dietman’s mental state, in particular whether she had observed him getting confused with his advancing years, she gave the following testimony – Tr. 15 August 2019 p. 37:
“Is he, as he is getting in more advanced years, do you notice any deterioration in his mental faculties?---Well, I think a little bit, but most times he seems all right.
Does he get confused?---He gets confused but he can – when I tell him to settle down and – you know, he – but he’s pretty good in that way. I get confused.”
(ii) The assessment of friends and regular associates of the nature of the relationship
The Commission relies, inter alia, on the notes of Ms Nielsen of 23 August 2018 to contend that the friends and regular associates of Dr Dietman and Ms Hanrahan regard them as being a couple – RCS para 22 p. 4.
Conversely, the Commission contends that a document entitled “TO WHOM IT MAY CONCERN” in Exhibit 4 should not be considered as it would amount to a denial of procedural fairness to the Commission. This was said to be so because the persons who signed the statement were not called by Dr Dietman to give evidence – RCS para 25 p. 4.
The Tribunal does not accept this submission. The Commission did not call Ms Nielsen to give evidence and yet it relies on her notes. The notes in question were not signed, and the Tribunal did not have the benefit of hearing her give testimony or that testimony being tested in cross-examination.
Despite this, the Tribunal has given appropriate weight to Ms Nielsen’s notes.
It should be noted, firstly, that s 119 provides that the Commission (and the Tribunal when undertaking a review) may inform itself on any matter and in such manner as it thinks just – s 119(1). The Commission is required to act according to “substantial justice” and the “substantial merits of the case” with regard to legal form and technicalities – s 119(1)(g). It must not be forgotten that the Act is beneficial and receives a beneficial interpretation. Where possible and appropriate, the Commission (and the Tribunal on review) should make every effort to ensure that a veteran, especially an aged, infirmed and unrepresented veteran, is given the latitude, courtesy and understanding to present his or her case.
In this matter the Tribunal is dealing with a veteran of frail health, in advanced years, suffering a range of debilitating illnesses and without the benefit of any independent advice or assistance. To impose on a veteran in these circumstances the rigours of the strict rules of evidence would be inappropriate, unfair and deny him an opportunity to present his case to the best of his ability. The Tribunal has ruled earlier that Dr Dietman’s attempt to introduce new evidence after the Hearing cannot be accepted. However, in this instance Mr Watts was not placed at such a disadvantage and was given the opportunity to cross-examine both Dr Dietman and Ms Hanrahan.
The document in question reads as follows – Exhibit 4:
“I, Christine Hanrahan, resides at….Broadbeach Waters, 4218, has been sworn in front of a Justice, George Van Liessum, that I am friends with Clarence Dietman not in a de facto relationship.
I, Christine Hanrahan, am a Carer for my Mum, Elma Wilkinson and my Friend, Clarence Dietman. I am not paid as a Carer because I am so blessed and grateful to have my mum, Elma, and Clarence to make sure of a roof over my head.”
The document is then signed by Ms Hanrahan, by Ms Hanrahan’s mother and friends of both Ms Hanrahan and Dr Dietman, namely:
(a)Elma Wilkinson, mother of Ms Hanrahan;
(b)David Mattiske, friend of Dr Dietman;
(c)Lynne Lennon, friend of Ms Hanrahan;
(d)Frank and Monica Savvy, friends of Dr Dietman;
(e)Robyn Harcourt, friend of Dr Dietman; and
(f)TM and YM Moss, friends of Ms Hanrahan.
The Tribunal did not, as pointed out by the Commission, have the benefit of having any of these persons give evidence, however the Tribunal does not discount the worth of this document. Having regard to what is said above, including the limitations that have been explained, it will be given appropriate weight.
(iii) Joint social activities
Dr Dietman and Ms Hanrahan both in their testimony and in the written material presented, submitted that with some exceptions, they lived separate lives, had some mutual but also separate friends and, basically, had fairly limited social contact.
For example, Dr Dietman stated (Exhibit 1 T1 p.1):
“I have my doctor friends and Christine has her own friends”.
It was not contested, however, that every Wednesday night Dr Dietman and Ms Hanrahan visit Ms Hanrahan’s mother and have dinner together and that on Friday nights they have dinner with Ms Hanrahan’s son. Ms Hanrahan pays for the dinners – Tr. 15 August 2019 p. 35.
Each Sunday Ms Hanrahan joins Dr Dietman for lunch with his friends, and on some Saturday nights Dr Dietman, Ms Hanrahan and her mother go out for a meal and
Dr Dietman pays for the meals – Tr. 15 August 2019 p. 35.
Dr Dietman would also accompany Ms Hanrahan to her family’s social events, including driving to Byron Bay for Christmas dinner – Tr. 15 August 2019 p. 35.
Ms Hanrahan also testified that at Christmas and on birthdays Dr Dietman and
Ms Hanrahan exchange gifts and give each other a kiss – Tr. 15 August 2019 p. 36.
(d) Sexual relations between the people
It is not contested (RCS para 26 p. 4) that there is not now, nor has there ever been, a sexual relationship between Dr Dietman and Ms Hanrahan.
Apart from the vehement disavowal of any intimate relations by Dr Dietman and
Ms Hanrahan, the Tribunal also has the benefit of a Medical Impairment Assessment Report on Sexual Dysfunction completed by Dr H Clifford Wright OAM on 9 March 2005. Dr Wright opined that Dr Dietman had been impotent since approximately 1986, or
16 years prior to Ms Hanrahan moving into his home – Exhibit 3.
(e) The nature of the people’s commitment to each other
(i) Length of the relationship
It is not contested that Ms Hanrahan has been living in Dr Dietman’s home for approximately 17 years, and that they had known each other prior to that time. Further, it is also clear from both parties that they have a very strong commitment to each other.
Ms Hanrahan said of Dr Dietman “he’s so respected” and that she “really could not leave” him – Tr. 15 August 2019 p. 36.
Dr Dietman confirmed that he has provided in his Will that Ms Hanrahan will have a life interest in his home, and that he envisages that she will remain in his home for the remainder of his life, and for so much of her subsequent life as she wishes.
(ii) Nature of companionship and emotional support provided to each other
There is no doubt that there is a close and caring relationship between Dr Dietman and Ms Hanrahan.
In his letter to the Commission of 28 June 2018, Dr Dietman referred to Ms Hanrahan as his “CLOSE COMPANION SINCE 9.11.02” – Exhibit 1 T8 p. 54.
When questioned about this by Mr Watts, Dr Dietman testified (Tr. 15 August 2019
p. 25): “Close means just very friendly”.
Although Ms Hanrahan testified that Dr Dietman and her were “only friends”, she also said that he was “so respected” and that he was “so nice to me” – Tr. 15 August 2019 pp. 36 – 37.
There has been a totally meshing of inter-familial relations between Dr Dietman and
Ms Hanrahan. Dr Dietman has dinner with Ms Hanrahan’s mother and son every week and he has been a regular attendee at Ms Hanrahan’s family get togethers, including Christmas.
It became clear during the Hearing that Dr Dietman shared Ms Hanrahan’s email address. When queried about this Dr Dietman testified that he was “computer illiterate. Don’t want to know anything about computers. People spend too long on computers.” – Tr. 15 August 2019 p. 25.
The totality of the evidence before the Tribunal suggests:
(a)both Dr Dietman and Ms Hanrahan care for each other’s welfare, and, in the case of Ms Hanrahan, she had demonstrated over an extended period of time practical assistance to Dr Dietman in times of need;
(b)there is a degree of involvement in each other’s families and friends, demonstrating a level of closeness and familiarity. This is illustrated by Dr Dietman regularly dining with Ms Hanrahan’s mother and son, and visiting her extended family for important occasions, including Christmas;
(c)
there has been an intermeshing of friends, with Ms Hanrahan joining with
Dr Dietman when he meets with friends for lunch on a weekend and on other occasions; and
(d)the nature of this commitment and involvement appears to have remained stable over an extended period of time; certainly for more than a decade.
(iii) Whether the people consider the relationship will continue indefinitely
As previously discussed, both Dr Dietman and Ms Hanrahan view their “relationship” as one that will continue for the duration of Dr Dietman’s life.
(iv) Whether the people see their relationship as a de facto relationship
Despite Dr Dietman stating in the Disability Pension Claim Form of 6 July 2016 that he was in a de facto relationship, throughout the proceedings both Dr Dietman and
Ms Hanrahan vehemently denied that they were now or had ever been in a de facto relationship. This denial was not based or influenced, prima facie, by cultural, religious or social pressures or reasons, but, it would appear it was from the genuinely held belief that they were friends, perhaps very dear friends, but not a de facto couple.
Weighing of the evidence
In reaching a conclusion as to whether two people are living together in a de facto relationship a decision-maker has to consider, inter alia, the matters outlined in s 11A. Those matters have been discussed earlier. However, there is an important ingredient that must be factored into the weighing exercise in each and every instance. A decision-maker is not just dealing with indicia per se, but also the subjective reality of human beings. Just as the presence or absence of a sexual relationship is not determinative of the existence (or lack thereof) of a de facto relationship, the empathetic relations between the relevant parties and how that empathy is manifested in goods and deeds is often of critical importance. So too is how the parties perceive themselves and each other. In short, in engaging in a weighing exercise, a decision-maker is faced with the difficult task of attempting to glean the true nature of the emotional relationship between two persons and how this is manifested in reality, both in terms of the parties themselves and the wider world.
This unfortunate review process was activated by Dr Dietman’s somewhat melodramatic announcement on 6 April 2018 that he and Ms Hanrahan had been partners since
9 November 2002.
Ms Hanrahan testified that she knew nothing of this “announcement” until after the event.
It is important in matters that turn on the evidence of persons that a decision-maker who is weighing the evidence and who has listened to the persons giving evidence, state what view they have formed on the credit and veracity of those persons and that evidence.
Turning first to Ms Hanrahan, she gave straightforward and unadorned evidence. She answered the questions, no matter how personal or embarrassing, with candour. She impressed the Tribunal as a witness of credit.
Dr Dietman gave evidence by telephone and although the Tribunal could not observe him, it was clear that he is an elderly gentleman who is in bad health. Despite this he gave, at times, quite vigorous responses to the questions posed. Many of the answers he gave were those of a gentleman of his age and his era in Australia. This is certainly no criticism of Dr Dietman, just an observation that he gave answers to questions that were appropriate for a man of his age.
This observation is quite important in the context of his “relationship” with Ms Hanrahan. It would be a mistake to view the mores and the ethics of a man born in Australia in
1926 with those of people of a more modern generation.
Dr Dietman, a professional of many years standing, is clearly a man of certain standards and ethics. He testified that he met Ms Hanrahan when she was in an unfortunate situation, with the breakdown of her marriage and in need of some assistance. Dr Dietman came to her assistance and has provided her with a roof over her head for 17 years. It is clear that Ms Hanrahan has treasured the kindness and generosity bestowed on her by
Dr Dietman.
The Tribunal has formed the view that Dr Dietman tried to “help” Ms Hanrahan by writing the letter of 6 April 2018. He was, it would seem, trying to obtain for her an advantage she did not want and which she was unaware of. Dr Dietman, a man then of 92 years, blundered into a bureaucratic process through his unwanted and misdirected correspondence because of a chivalrous attempt to assist his dear friend, Ms Hanrahan.
The Tribunal has not formed the view that the letter of 6 April 2018 suddenly brought to light a relationship that has hitherto been unexposed, but, rather was the product of an elderly man trying to help his friend, and, in the process, created unnecessary problems for them both.
In turn, Ms Hanrahan, despite suffering her own medical problems, has attempted to repay the kindness given to her by Dr Dietman by helping in practical ways wherever she could, whether that be housekeeping, shopping, driving cars or whatever else she could do.
Over the years this friendship has resulted in close bonds forming between the respective families of Dr Dietman and Ms Hanrahan. Clearly Dr Dietman gets along with Ms Hanrahan’s mother and son, and was accepted without reservation into her wider family for Christmas and other celebrations.
Likewise, when Dr Dietman’s children visit, Ms Hanrahan is also welcomed as a dear friend of their father.
Both Dr Dietman’s and Ms Hanrahan’s friends have welcomed them both, although it would seem that this welcoming is not as a de facto couple, but as friends, who in turn became part of a wider circle of friends.
It is the case then, that the Tribunal has formed the view that Dr Dietman and
Ms Hanrahan are not now, nor ever have been, a de facto couple. They have a special relationship, one born of mutual respect, care and understanding. Dr Dietman has been extremely generous to Ms Hanrahan. He obviously holds her in the highest respect. She, in turn, has appreciated his generosity of spirit, and has tried to repay that by helping him practically, especially as his health has deteriorated. It would appear that Ms Hanrahan is a spiritual and religious person, who has cared for her parents throughout her life and, in turn, cares for Dr Dietman.
It would be an error to mistake the genuine and deeply felt affection some people have for others, with the concept of “partnership” or a “de facto” relationship. Where a decision-maker draws the line in these matters is fraught with difficulty, and the matters outlined in s 11A are designed to assist in this regard. Even so, it may often be the case that one person will reach a conclusion objectively that another person would reach differently, albeit objectively.
In reaching this conclusion the Tribunal has had regard to the following factors:
(a)Dr Dietman and Ms Hanrahan have not, prima facie, co-mingled their financial resources;
(b)there is no evidence of any pooling of financial resources;
(c)there is no evidence of any mutual legal obligations;
(d)the basis of day-to-day household expenses is one based on utilitarianism rather than mutual obligation;
(e)Dr Dietman and Ms Hanrahan live in separate bedrooms and have separate bathrooms;
(f)other than those times that they have dinner with friends of family, they eat separately;
(g)there is no objective evidence that they have held themselves out as a de facto couple;
(h)the little objective evidence available, suggests, on the balance, that their friends and family do not regard them as being partners;
(i)
there has never been a sexual relationship between Dr Dietman and
Ms Hanrahan;
(j)both Dr Dietman and Ms Hanrahan have had romantic interests with other persons during the time they have shared the same home; and
(k)there is evidence of a longstanding deep friendship and one that will continue, but no evidence that this is anything other than a relationship of mutual friendship, respect and care.
As stated earlier, the relationship of Dr Dietman and Ms Hanrahan is of longstanding. There are elements of this relationship that fit the indicia of a de facto relationship. Its longevity, the obvious care that they share for one another, and the degree to which
Ms Hanrahan devotes time and devotion to Dr Dietman could lead one to the view that this is more than just a deep friendship. However, the Tribunal accepts the honesty of
Ms Hanrahan’s evidence that she owes a deep debt of gratitude to Dr Dietman. He has been a gentleman who has given her unencumbered friendship of the most practical kind. In turn he has been blessed with a housemate who has cared for him without reservation and without financial obligations. In short, they have both benefited from their unique bonds of friendship.
Having regard to the above, the Tribunal has formed the view that Dr Dietman and
Ms Hanrahan are not living together in a de facto relationship.
DECISION
The decision under review is set aside and the matter is remitted to the Repatriation Commission to give effect to the terms of this decision.
I certify that the preceding 148 (one hundred and forty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
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Associate
Dated: 31 October 2019
Date of hearing: 15 August 2019 Date final submissions received: 10 September 2019 Applicant: By Telephone Advocate for the Respondent: Mr Jamie Watts Solicitors for the Respondent: Australian Government Solicitor
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