Dietman and Repatriation Commission (Veterans' entitlements) - [2019] AATA 4428

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 12
REASONS 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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] AATA 4428
Decision Date: 31 October 2019

CaseChat Overview and Summary

This matter concerned an appeal by Dr Dietman against a decision by the Repatriation Commission to reduce his service pension on the basis that he was a member of a couple. The core of the dispute was whether Dr Dietman and Ms Hanrahan were living together in a de facto relationship, as defined by the relevant legislation. The Administrative Appeals Tribunal was required to determine this question.

The Tribunal was tasked with considering the interpersonal relationship between Dr Dietman and Ms Hanrahan as a whole, not being limited to the specific factors outlined in section 11A of the relevant Act. However, it was fundamental that the Tribunal have regard to each of the factors contained in section 11A, which include the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship, and the nature of the people's commitment to each other. The Tribunal was required to engage in a weighing exercise, evaluating both objective and subjective considerations to determine the "total picture" of the relationship.

The Tribunal found that Dr Dietman and Ms Hanrahan were not living together in a de facto relationship. This conclusion was reached after weighing the evidence presented, including the financial aspects, where there was no joint ownership, significant pooling of financial resources, or legal obligations owed between them. The Tribunal also considered the subjective perceptions of the parties, noting that despite an earlier assertion by Dr Dietman that they had been partners, both he and Ms Hanrahan vehemently denied being in a de facto relationship, maintaining they were friends. The Tribunal found Ms Hanrahan to be a credible witness and noted that Dr Dietman's responses, while vigorous, were consistent with his age and era.

Consequently, the decision under review by the Repatriation Commission to reduce Dr Dietman's service pension was set aside. The matter was remitted to the Repatriation Commission to give effect to the Tribunal's decision that Dr Dietman was not a member of a couple for the purposes of the service pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONIntroduction 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