Garner v Repatriation Commission

[1998] FCA 1387

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Veterans’ Affairs – Appeal from Administrative Appeals Tribunal (“AAT”) – entitlement to pension – whether dependant – whether “partner” of veteran at time of his death – whether member of a couple – whether in “marriage-like” relationship – whether absence resulting from veteran’s illness.

Veterans’ Entitlements Act 1986, ss 11, 11A, 5E(1), 5E(2), 5E(3), 5E(2)(b)(i) to (iv)

MARIE ANGELA GARNER v

REPATRIATION COMMISSION
NG 434 OF 1998

TAMBERLIN J
SYDNEY
3 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 434 of 1998

BETWEEN:	MARIE ANGELA GARNER APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	3 NOVEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. An extension of time be granted to file and serve the Notice of Appeal out of time until 8 May 1998.

1. The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 434 of 1998

BETWEEN:	MARIE ANGELA GARNER APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	3 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“the AAT”), whereby the Tribunal affirmed the decision of the Repatriation Commission, that the applicant was not a member of a “couple” and therefore was not a “dependant” of the late Noel Garner (“the veteran”), within the meaning of ss 11 and 11A of the Veterans’ Entitlements Act 1986 (“the Act”).  The consequence of this determination is that she is not eligible for a war widow’s pension claimed by her after the death of the veteran, with whom she had lived for about nine years up to 1973 in a de facto relationship.

An application was made for an extension of time within which to file the Notice of Appeal.  The Notice was filed on 8 May 1998.  However, although the AAT letter enclosing the decision was dated 9 April 1998, I am satisfied on the basis of a date stamp, that it was not received by the solicitor for the applicant until 21 April 1998.  In view of these circumstances and the lack of any demonstrated prejudice to the respondent, I consider that the time for filing the Notice should be extended to the date when it was, in fact, filed.

Relevant provisions

The relevant provisions of the Act read as follows:

“11. (1)  In this Act, unless the contrary intention appears:
dependant, in relation to a veteran (including a veteran who has died), means:

(a)      the partner; or
(b)      a non-illness separated spouse; or

(c)a widow or widower (other than a widow or a widower who marries or remarries); or

(d)a child;

of the veteran.

(2)…

(3)…”

In the present case, the only class of dependant under which the applicant can qualify is as a “partner”. “Partner” is defined in s 5E(1) of the Act to mean a person who is a member of a couple. Under s 5E(2), a member of a couple of is defined as follows:

“(2)     A person is a member of a couple for the purposes of this Act 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

(b)       all of the following conditions are met:

(i)the person is living with a person of the opposite sex (in this paragraph call 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 marriage-like relationship;

(iv)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961. (Emphasis added)

Subsection 5E(3) is relevant to 5E(2)(b)(i) and provides as follows:

“(3)     For the purposes of subparagraph (2)(b)(i), a person is to be treated as living with another person during:

(a)     any temporary absence of one of those persons;
 (b)     an absence of one of those persons resulting from illness or infirmity’

if the Commission is of the opinion that they would, but for the absence, have been living together during that period.” (Emphasis added)

The sub-section set out above is described as a “deeming” provision.  It operates to require a matter to be assumed even if the factual position is otherwise.

Subsection 5E(2)(b)(iii) provides that the decision-maker form an opinion as to the person being in marriage-like relationship under s 11A, which provides:

“11A.  In forming an opinion for the purposes of this Act whether 2 people are living together in a marriage-like 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 married to each other; and

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)the basis on which the people make plans for, or engage in, joint social activities;

(d)any sexual relationship between the people;

(e)the nature of the people’s commitment to each other, including:

(i)the length of the relationship; and

(ii)the nature of any companionship and emotional support that the people provide to each other; and

(iii)whether the people consider that the relationship is likely to continue indefinitely; and

(iv)whether the people see the relationship as a marriage-like relationship.” (Emphases added)

To a large extent, the above considerations simply reflect some of the more significant matters which a reasonable person would consider to be indicia of a marriage-like relationship.

The importance of the question under consideration is, of course, that if the applicant can show that she was “a dependant” of the veteran, then she will qualify for a pension under s 14 of the Act.

The AAT was not satisfied that there was a marriage-like relationship between the applicant and her late husband at the time of his death. It considered that even if it had not been for the illness of her husband, the applicant would not have been living with him either before his admission to the specified Fyson Nursing Home, nor at the time of his death. It found that the applicant did not meet the conditions necessary in order to be a member of a “couple”. Therefore, it decided that she could not be classified as a “dependant” for the purposes of s 11(1) of the Act. Accordingly, in the light of these conclusions, the AAT affirmed the decision under review.

The circumstances

Mrs Garner and the veteran were never married but it was not in dispute that between 1964 and 1973 they were in a “marriage-like” relationship.  They shared a household, shared financial resources and they had a sexual relationship.  Their two children were born in 1966 and 1968.  In 1973, with the help of her mother and her brother, the applicant left the home in which she resided with the veteran, fearing for her future safety and that of the children.  The AAT accepted that the applicant had lived under the most difficult and distressing circumstances.  In fact, her doctor told her to leave.  The veteran drank to such an extent that by 20 December 1973 he had been diagnosed as suffering from “Korsakoff’s Psychosis in consequence of alcoholism”.  He became violent under the influence of alcohol and he presented at the Parramatta Psychiatric Centre as being confused and disorientated as to time.  He also fabricated stories to fill in gaps in his memory.  The AAT accepted that the applicant, after leaving the shared household, went to live in Auburn, a suburb of Sydney,  with her children.  The veteran visited her and their children two or three times.  On one occasion he gave her $40.  She did not see him for some time before being advised that he had been admitted to Royal Prince Alfred Hospital.  She visited him there a few times.  After his admission for surgery for a burst ulcer, he came to live with her for approximately ten months but she explained that she did not take him back but she looked after him until he got better.  She did not ask him for money.

On 22 April 1981, Mrs Hudson of West Kempsey, who was the sister of the veteran, was advised that he had been transferred from the Parramatta Psychiatric Centre, where he had been a patient since 1976, to Stanmore Nursing Home.  The applicant was not informed of this.  She said that his sister was distressed by his appearance and had arranged for him to be placed in her care at Kempsey.  Mrs Hudson looked after Mr Garner for a ten months or so before he was admitted to the Fyson Nursing Home where he died on 20 November 1987 from carcinoma of the lung and Korsakoff’s syndrome.

On 27 December 1980, the applicant signed a “consent to operate” form in respect of the veteran at Westmead Centre.  There were some hospital records that indicated that she was the person to be contacted or notified by the hospital.

The AAT does not accept that the only reason the applicant moved in 1973 from premises she shared with the veteran was because she feared for her life and that of the children. It noted that there had not been a shared household for many years and that the applicant had been left to care for the children on her own.  It found that finances had not been shared and that the veteran offered the applicant no emotional support.  The AAT found that the alcoholism and violence of the veteran destroyed their relationship and that there was no likelihood of a marriage-like relationship being re-established between 1973 and 1987.  It considered that although the applicant assisted her husband after one of his operations, it was Mrs Hudson who cared for him before his admission into the nursing home.  It considered that even if it had not been for the illness of the veteran, the applicant would not in fact have been living with him before his admission to the nursing home, nor at the time of death.  Before his admission into the nursing home, in the AAT’s view, the veteran would no longer have posed a threat to the safety of the applicant or their children.  He had shown signs of docility whilst being treated with medication.  The Tribunal stated that “in any event” it could not be satisfied, on the balance of probabilities, of the cause of his behaviour which led the applicant to leave him in 1973.

The appeal

The first submission for the applicant is that the AAT erred in law in finding that she and the veteran were not in a “marriage-like relationship” at the time of his death for the purposes of s 5E(2)(b)(iii) of the Act. More specifically, it is submitted that when deciding whether the parties were in a marriage-like relationship at the relevant time, the Tribunal failed to take into account the circumstance that the parties were separated as a result of the veteran’s illness, as required by s 5E(3)(b) of the Act.

The difficulty with this argument is that the “deeming” provision in s 5E(3) is expressly and specifically limited to an assumption for the purposes of sub-paragraph 2(b)(i); namely, to decide whether the applicant was living with a partner. The provision does not in terms operate in relation to a consideration of the other sub-paragraphs in sub-section 5E(2)(b). In other words, the deeming provision only operates for the purpose of considering whether the partners were living together at the relevant times. It is not concerned with the question whether the applicant and the veteran were, in the Commission’s opinion, in a “marriage-like relationship” within sub-paragraph 5E(2)(b)(iii).

The indicia of “living together in a marriage-like relationship” are set out in s 11A(a) to (e) inclusive. It is to be noted that s 11(A) requires regard to be had to all of the circumstances of the relationship and goes on to spell out a number of specific matters which must be taken into account.  When considering “all the circumstances of the relationship” it was, of course, open to the AAT to take account of the fact that the veteran and the applicant had been separated as a consequence of the veteran’s illness and the consequential violence and dysfunctional behaviour arising from it. It is clear that the illness and the separation are important matters to be taken into account. On a careful reading of the AAT decision, with respect to whether there was a marriage-like relationship, I am not satisfied that the AAT ignored the illness and its impact on the relationship. In the light of the specified considerations set out in s 11A, it seems to me that a strong case is shown on the evidence for the view that there was no marriage-like relationship at the relevant times. However, it is not for this Court to determine the substantive question on its merits but simply to decide if the AAT’s determination was open on the material before it.

More specifically, a consideration of the financial aspects of the relationship at the relevant times would not indicate a marriage-like relationship. There was no joint household responsibility for living arrangements or housework. The social and sexual aspects of the relationship, at the relevant times, appear to have been non-existent. Although there had been a substantial commitment between the parties for the period prior to 1973, it was open to the AAT to find on the material, that the various matters set out in sub-paragraphs s 11A had not been made out.

If the applicant is to succeed, it must be shown that there was an error of law made by the AAT in relation to the finding that there was no “marriage-like relationship”. No such error has been established.  It follows that the appeal must be dismissed.

Two additional matters were raised on behalf of the applicant which call for comment.  The first is a submission that the Tribunal erred in finding that, even if it had not been for the illness, the applicant would not have been living with the veteran before his admission to the nursing home or at the time of his death.  This essentially raises a question of fact.  The AAT considered that it would have been possible for the applicant to have lived with the veteran during the period he lived with his sister because, it is said, the evidence indicated that while living with his sister he had become more docile and showed no continuing tendency to violence.

Counsel for the applicant points out that when living with his sister, the veteran was not exposed to the circumstances which had previously provoked him to violence; namely, the alcohol and the presence of his wife and family.  It is not necessary for me to choose between these submissions.  The conflicting submissions amply illustrate that the question raised is essentially one of fact and degree on which reasonable minds can differ.  Once this threshold is crossed, then it is open to the AAT to reach the conclusion which it adopted.  Such a finding is not a ground for appeal to this Court, nor can the conclusion of the AAT be said to be so obviously wrong that it is untenable.

The second additional matter raised by the applicant is the statement in the AAT decision that:

“In any event, the Tribunal cannot be satisfied that on the balance of probabilities of the cause of Mr Garner’s behaviour which led to Mrs Garner to leave him in 1973.”

In making this statement, my view is that the AAT fell into error because it is clear on the evidence that the cause of the 1973 separation was the horrendous behaviour of the veteran toward the applicant prior to that time, as described in the uncontested testimony of the applicant. The circumstances were such that no-one could be expected to live in such an environment as that in which the applicant and her children found themselves in 1973. Indeed, it is remarkable that the applicant later demonstrated the concern and attachment to the veteran, which is evidenced by her conduct after 1973. However, it does not, unfortunately follow that because of this error the decision of the AAT must be set aside. This is because the conclusion was expressed as a collateral finding in the sense that it was not essential to the decision reached. The words “in any event” indicate that there were other controlling considerations which led the AAT to its ultimate conclusion. The applicant was required to satisfy all the conditions set out in s 5E(2)(b)(i) to (iv) inclusive. Because, it has not been established that the AAT was in error in finding that there was no “marriage-like relationship”, the present appeal must fail. I make no order as to costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             3 November 1998

Counsel for the Applicant:	Mr C C Dwyer
Solicitor for the Applicant:	Kenneth Harrison
Counsel for the Respondent:	Ms R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 September 1998
Date of Judgment:	3 November 1998