Hancox and Defence Force Retirement and Death Benefits Authority
[2008] AATA 1013
•10 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1013
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1586
GENERAL ADMINISTRATIVE DIVISION ) Re VERONICA HANCOX Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date10 November 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..............[Sgd]................................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – defence force retirement and death benefit scheme – applicant survives deceased person - applicant not living with deceased member as his wife for a continuous period up to the time of his death – applicant did not ordinarily live with the deceased member on a permanent and bona fide domestic basis at the time of his death – consideration of ‘marital relationship’ – living arrangements not due to temporary absence or special circumstances – decision under review affirmed.
Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 3, 6A, 6B, 39
Military Superannuation and Benefits Rules 1993 (Cth)
Explanatory Memorandum to the Superannuation Schemes Amendment Bill 1992
Superannuation Act 1976 (Cth) s 8A
Social Security Act 1991 (Cth) s 4Hornsby v Military Superannuation and Benefits Board of Trustees No 1 (2003) 126 FCR 484
Harris v Trustee Commonwealth Superannuation Scheme (2006) 91 ALD 30
Roy v Sturgeon (1986) 11 NSWLR 454
Furmage v Social Security Commission [1978] 2 NZAR 75
Dries v Ryan [2000] NSWSC 1163
Weston v Public Trustee (1986) 4 NSWLR 407Lambe v Director-General of Social Services (1981) 57 FLR 262
Re RC and Director-General of Social Services (1981) 3 ALD 334Re Gray and Defence Force Retirement and Death Benefits Authority (2004) 80 ALD 483; [2004] AATA 450
REASONS FOR DECISION
10 November 2008 Mr R G Kenny, Member DECISION UNDER REVIEW
1. At the time of his death in April 2007, Mr Brian Stevens was in receipt of a “pension benefit” as a “member of the scheme” established under the Defence Force Retirement and Death Benefits Act 1973 (the Act)[1]. On 17 May 2007, Ms Veronica Hancox lodged a claim with the Defence Force Retirement and Death Benefits Authority (the Authority) for a pension benefit under the Act on the basis that she was the spouse of the late Mr Stevens. On 3 October 2007, a delegate of the Authority rejected the claim. After reconsideration, the Authority confirmed that decision on 17 March 2008. Ms Hancox seeks review by the Tribunal.
[1] “pension benefit” and “member of the scheme” are defined in s 3 of the Act.
ISSUES AND LEGISLATION
2. Where a “recipient member”[2] of the scheme dies and is survived by a spouse, the spouse is entitled to a pension in accordance with s 39 of the Act. Under s 6B(2)(a) of the Act, a person is a spouse who survives a deceased person[3] if she had a marital relationship with the deceased person at the time of his death. The meaning of the term “marital relationship” is set out in s 6A of the Act in the following way:
[2] The term “recipient member” is defined in s 3 of the Act.
[3] The term “deceased person” includes a person who was, at the time of his death, a recipient member of the Scheme: see s 6B(1) of the Act.
“6A Marital relationship
(1) For the purposes of this Act, a person had a marital relationship with another person at a particular time if the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis at that time.
(2) For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person’s husband or wife on a permanent and bona fide domestic basis at a particular time only if:
(a) the person had been living with that other person as that other person’s husband or wife for a continuous period of at least 3 years up to that time; or
(b) the person had been living with that other person as that other person’s husband or wife for a continuous period of less than 3 years up to that time and the Authority, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis at that time;
whether or not the person was legally married to that other person.
(3) For the purposes of this Act, a marital relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).
(4) For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:
(a) the person was wholly or substantially dependent on that other person at the time;
(b) the persons were legally married to each other at the time;
(c) the persons had a child who was:
(i) born of the relationship between the persons; or
(ii) adopted by the persons during the period of the relationship;
(d) the persons jointly owned a home which was their usual residence.
(5) For the purposes of this section, a person is taken to be living with another person if the Authority is satisfied that the person would have been living with that other person except for a period of:
(a) temporary absence; or
(b) absence because of special circumstances (for example, absence because of the person’s illness or infirmity or a posting of the person).”
3. It is not in dispute that Mr Stevens is a deceased person as that term is used in s 6B(1) of the Act. The issue for determination is whether Ms Hancox satisfies the requirements of s 6A of the Act.
MS HANCOX’S EVIDENCE
4. Ms Hancox gave the following evidence. She lives on Bribie Island and met Mr Stevens at a social function at the local bowls club in about 1995. At that time, Mr Stevens also lived on Bribie Island though he moved to the mainland after he purchased a house at Morayfield in 2003. From the beginning, their friendship developed and Ms Hancox regularly visited Mr Stevens at his Bribie Island unit. They commenced a sexual relationship and she stayed overnight in his unit about once per week. She described him as being a heavy consumer of alcohol in the evenings and as acting in a violent manner towards her in his sleep. She recalled incidents such as being wakened in the night with Mr Stevens’ hands around her throat and said that he would not remember such incidents when confronted with them on the following morning. Ms Hancox attributed these actions to the effects upon him of his experiences while serving in the Australian army in South Vietnam. She was fearful for her safety and for that reason chose to return to her own residence rather than remain with him overnight.
5. Shortly after Mr Stevens moved to Morayfield, he suffered the first of three strokes. Ms Hancox believed that these had the effect of calming him down although he remained capable of independent living. Because of their continuing friendship, she travelled the distance of 24 or 25 kilometres from her Bribie Island unit to visit him on a daily basis up to the time of his death. However, she remained fearful of him throughout that time and rarely stayed overnight for more than 1 night per week. On those occasions, she rarely slept. She spent the remaining nights in her own unit. During the day, she performed routine domestic duties in Mr Stevens’ house and in his garden. Ms Hancox did not, in conjunction with Mr Stevens, own any property or have any banking facility. She received no financial support from him although at times she consumed meals prepared from ingredients which had been provided by him. Centrelink payments were the sole source of income support for Ms Hancox during those years and these were paid to her at the single, rather than the partnered, rate. She and Mr Stevens had a very limited social life together although there were a few occasions when they visited her relatives in Caboolture and, at times, stayed overnight.
6. Ms Hancox said that, after Mr Stevens moved to Morayfield, they formed the intention to get married. She felt that they were engaged to marry from then although this only became formally the case when he presented her with an engagement ring in September 2005. They intended to marry in June 2007 but he died before then.
OTHER EVIDENCE
7. In evidence were letters written, in June 2008, by Ms Hancox’s son (Dale Buckley) and daughter (Monique Hancox) and, in September 2007, by two of Ms Hancox’s friends (Sharon O’Toole and Lynne McKenzie). Generally, these confirmed Ms Hancox’s evidence concerning the length of her association with Mr Stevens, the details of their engagement to marry, the visitations to and frequency of overnight stays at Mr Stevens’ residences and her fear of staying with Mr Stevens.
8. Also in evidence were letters from Mr Stevens’ medical practitioner, Dr Robert Ng. On 15 September 2007 and 31 July 2008, he wrote that Mr Stevens suffered from post traumatic stress disorder which manifested itself in anger, aggressive behaviour and alcohol abuse. Dr Ng expressed his belief that Ms Hancox had been Mr Stevens’ “de facto” for some time before his death. Additionally, other documentary evidence reveals that Ms Hancox was a witness to the will of Mr Stevens’ father in 2002; was nominated as Mr Stevens’ fiancé in his hospital admission and discharge forms in 2002 and 2007; was the commissioner for Mr Stevens’ funeral; was the informant nominated on Mr Stevens’ death certificate; was the grantee of letters of administration in relation to Mr Steven’s estate; and was a listed driver of Mr Stevens’ car for insurance purposes.
SUBMISSIONS
9. Ms Hancox submitted that, while she and Mr Stevens were not formally married, they, nevertheless, were living for many years in a marital relationship. She referred to the amount of time that she spent with him, especially after he moved to Morayfield, and to their commitment to each other as demonstrated by their becoming engaged and intending to marry. She submitted that their maintaining of separate households did not mean that the marital relationship did not exist and that the only reason she did not stay with Mr Stevens all of the time was her fear of harm during the night.
10. Mr Dillon, for the Authority, submitted that Ms Hancox had not, at any time, ordinarily lived with Mr Stevens as his wife on a permanent and bona fide domestic basis. He also submitted that Ms Hancox did not meet the criteria in s 6A(4) of the Act. In relation s 6A(5) of the Act, he submitted that the concept of “absence” could only arise if there had been a previous period during which the requirements of a marital relationship had been satisfied and that this was not the situation with Ms Hancox. In summary, he submitted that Ms Hancox had not, at any time, been in a marital relationship with Mr Stevens, was not his spouse and was not eligible to receive a pension in accordance with s 39 of the Act.
CONSIDERATION
11. Under s 6A(1) of the Act, Ms Hancox will have been in a marital relationship with Mr Stevens at the time of his death if she ordinarily lived with him as his wife on a permanent and bona fide domestic basis at that time. To meet that requirement, a necessary condition is that either s 6A(2)(a) or (b) of the Act be satisfied. Each of these provisions requires Ms Hancox to have been living with Mr Stevens as his wife for a continuous period up to the time of death. Where the period was of less than 3 years duration, s 6A(2)(b) of the Act requires proof of an additional element which relates to the character of the relationship[4]. This requires a finding that Ms Hancox ordinarily lived with Mr Stevens as his wife on a permanent and bona fide domestic basis at the time of death. This is the same requirement as provided for in s 6A(1) of the Act, in any event.
[4] See Hornsby v Military Superannuation and Benefits Board of Trustees No 1 (2003) 126 FCR 484 at 495 in relation to the Military Superannuation and Benefits Rules 1993 (Cth) Part 1A of the Schedule which is not materially different to s 6A of the Act.
12. If the period of living with Mr Stevens as his wife up to the time of death was of at least 3 years duration, s 6A(2)(a) of the Act is met. In that situation, a question arises whether it is then necessary to return to the test in s 6A(1) of the Act to determine whether she ordinarily did so on a permanent and bona fide domestic basis at the time of Mr Stevens’ death. In Hornsby v Military Superannuation and Benefits Board of Trustees No 1 (2003) 126 FCR 484, Mansfield J was considering the Military Superannuation and Benefits Rules 1993 (Cth)[5] which are not materially different from the terms of s 6A of the Act. His Honour expressed the opinion, without deciding, that the absence of reference to the character of the relationship where a 3 year period is established may mean that it is assumed that a permanent and bona fide domestic relationship exists whereas a shorter period requires more explicit explanation[6].
[5] In particular, the case was concerned with Part 1A of the Schedule to the Superannuation and Benefits Rules 1993 (Cth).
[6] Hornsby v Military Superannuation and Benefits Board of Trustees No 1 (2003) 126 FCR 484 at 497.
13. There were some inconsistencies in the material concerning the frequency and purpose of Ms Hancox’s visitations to Mr Stevens’ house. Ms Hancox said that she spent every day at Mr Stevens’ house and did not indicate that it was because he needed assistance. Ms O’Toole referred to Ms Hancox spending “3 to 4 days per week” at Mr Stevens’ house undertaking domestic duties because of his state of health. Ms McKenzie referred to her spending “most days” at his house doing house and yard work for him because of his health. Monique Hancox referred to the stroke that Mr Stevens suffered and said that Ms Hancox went to see him every day to “make sure he was ok”. On 23 October 2007, Ms Hancox’s solicitor wrote to the Authority seeking review of the initial decision rejecting her claim, stating that Ms Hancox spent every day with Mr Stevens.
14. Inconsistency with Ms Hancox’s evidence that she was living with Mr Stevens in his house is also revealed in her own statements in the benefit application form completed by her on 17 May 2007. This contained a range of questions about her relationship with Mr Stevens. These questions and her responses were:
Were you living with the deceased at the time of death? No
Were you living with the deceased on a permanent and bona fide domestic basis at the time of death? NoWas the separation due to illness? Yes
15. Ms Hancox, in her evidence, said that the last of these responses was in error and that she should have answered “No” to that question as well.
16. Inconsistency with Ms Hancox’s evidence is also demonstrated in a file minute, dated 10 August 2007, of a telephone conversation between Ms Hancox and an officer of the Authority which was in evidence. There, she is noted as stating that she and Mr Stevens “lived in separate residences but spent a lot of time together”.
17. Those inconsistencies cast doubt on Ms Hancox‘s evidence concerning the amount of time she spent at Mr Stevens’ house. Nonetheless, I accept that she spent considerable time at Mr Stevens’ house, carried out a range of household duties there, maintained a sexual relationship with him and was engaged to marry him. This was a long-term association between them. However, Ms Hancox maintained a separate residence to which she made a 50 kilometre round trip on most days she visited Mr Stevens in order to spend the night away from his house. Her evidence was that she and Mr Stevens each needed their “own space”[7] and that she was concerned for her safety at night while Mr Stevens was sleeping. Had Ms Hancox remained in Mr Stevens’ house instead of returning to her residence, perhaps occupying a separate room at night, a different view about their living arrangements might pertain. Also, if Ms Hancox and Mr Stevens had married, as Ms Hancox said they intended, their arrangements may have changed although it is not apparent on the material before me that the underlying reasons for Ms Hancox’s daily departures from Mr Stevens’ house would be any different. In any event, the point of the provisions under consideration is not what might have happened but, rather, what the situation was in the time leading up to Mr Stevens’ death.
[7] See Ms Hancox’s statutory declaration dated 19 September 2007.
18. In s 6A(4) of the Act, there are listed matters of evidence relevant for the purposes of s 6(2) of the Act. On an initial consideration, these might be seen to be applicable to s 6A(2)(b) and not s 6A(2)(a) of the Act[8]. However, the reference in s 6A(4) is generally to s 6(2) and, in Hornsby v Military Superannuation and Benefits Board of Trustees No 1 (above), Mansfield J held that the provision equivalent to s 6A(4) of the Act was relevant to both components of the provision equivalent to s 6A(2)(a) and (b) of the Act[9].
[8] See the Explanatory Memorandum to the Superannuation Schemes Amendment Bill 1992 which amended the Act where it declares that “s 6A(4) will provide relevant evidence for arriving at an opinion that a person in a relationship of less than 3 years duration ordinarily lived with the other person on a permanent and bona fide domestic basis”.
[9] At 497.
19. I am satisfied that none of the matters listed in s 6A(4) of the Act is applicable to Ms Hancox. The first of these is whether Ms Hancox was wholly or substantially dependent on Mr Stevens. The nature of dependence is not defined in the provision. In Harris v Trustee Commonwealth Superannuation Scheme (2006) 91 ALD 31, Conti J accepted that, for the purposes of s 8A of the Superannuation Act 1976 (Cth), the term was concerned with financial rather than emotional dependence[10]. That provision is also not materially different from s 6A of the Act. Ms Hancox’s evidence was that, apart from accepting some meals, she was not financially dependent at all on Mr Stevens. As to the remaining matters in s 6A(4) of the Act, Ms Hancox and Mr Stevens were not legally married; they did not have a child; and they did not jointly own a home which was their usual residence.
[10] At 44 accepting the Tribunal’s approach set out at 37.
20. The application of s 6A(4) of the Act is not limited to the matters listed therein. Regard may also be had to any other relevant evidence. The documentary material in evidence concerning the will of Mr Stevens’ father, Mr Stevens’ hospital, motor vehicle insurance, funeral records and letters of administration demonstrates that their association extended to other matters. Also, Dr Ng considered them to be living in a de facto relationship; but he did not give evidence and it is not known on what basis he formed that opinion. The letters from Ms Hancox’s children and friends indicate some recognition by others of their relationship. However, in one material particular, that recognition was not present as, throughout the period when she was attending Mr Stevens’ house, Ms Hancox held herself out as a person who was not in a marriage-like relationship under the Social Security Act 1991. While the test in that statute for the existence of such a relationship is not identical to that under s 6A of the Act, it raises similar considerations[11].
[11] The Social Security Act 1991 ss 4(2) and (3) list relevant factors relevant to determining whether parties are in a marriage-like relationship during a relevant period including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship between the people and the nature of the people's commitment to each other.
21. The focus of s 6A(2)(a) and of the first element of s 6A(2)(b) of the Act is whether Ms Hancox was “living with” Mr Stevens as his wife for a “continuous period” up to the time of his death. I am satisfied that, in the years that Mr Stevens lived in the Morayfield house, Ms Hancox maintained a degree of independence and separation which is not consistent with her being described as living with Mr Stevens as his wife for a continuous period up to the time of his death.[12] Further, I am satisfied that these factors show that she was not “ordinarily” living with him. Indeed, I am satisfied that her circumstances are summed up in the content of the file minute noted above: she and Mr Stevens lived in separate residences but spent a lot of time together.
[12] See Roy v Sturgeon (1986) 11 NSWLR 454 at 460, 468; Furmage v Social Security Commission [1978] 2 NZAR 75 at 79; and Dries v Ryan [2000] NSWSC 1163 at para [7] – [9].
22. As Ms Hancox was not living with Mr Stevens as his wife for any continuous period up to the time of his death, neither s 6A(2)(a) or (b) of the Act is met. This means that s 6A(1) of the Act is not satisfied and it is not necessary to consider the further requirement expressed in s 6A(1) of the Act. Nonetheless, I make brief reference to that requirement which is that the state of Ms Hancox’s living with Mr Stevens as his wife for a continuous period must have been ordinarily the case and have been on a permanent and bona fide domestic basis at the time of his death[13]. That is also the second element in s 6A(2)(b) of the Act.[14]
[13] The references to it being ordinarily the case and that it must be permanent are substantive elements of the provision and not mere surplusage: see Harris v Trustee Commonwealth Superannuation Scheme (2006) 91 ALD 30 at 35.
[14] As noted above in paragraph 12, this test of the character of the relationship is also relevant to the analysis under s 6A(2)(a) of the Act.
23. For parties to be living together on a bona fide domestic basis, there must be a real and genuine domestic arrangement[15] between them and all facets of their interpersonal relationships need to be taken into account[16]. The frequency of Ms Hancox’s departures from Mr Stevens’ house, her maintaining of a separate residence for that purpose, the lack of any merging of financial aspects of their lives, the minimal degree of socialisation together and Ms Hancox’s presentation of herself for social security purposes as a non-partnered person leave me satisfied that their living arrangements can not be described as being on a permanent and bona fide domestic basis at any time prior to Mr Stevens’ death.
[15] See Weston v Public Trustee (1986) 4 NSWLR 407 at 409.
[16] See Lambe v Director-General of Social Services (1981) 57 FLR 262 at 271, Furmage v Social Security Commission [1978] 2 NZAR 75 at 80 and Re RC and Director-General of Social Services (1981) 3 ALD 334 at 350.
24. Despite the finding that Ms Hancox was not living with Mr Stevens up to or at the time of his death she will be taken, under s 6A(5) of the Act, to have been so doing if she would have been living with him except for a period of temporary absence or absence because of special circumstances. Examples of the latter are given in the provision as being absence because of the illness, infirmity or posting of Mr Stevens. I accept the submission of Mr Dillon in relation to this provision. The absence must be from a previous state of affairs which constituted a marital relationship in accordance with the preceding components of s 6A of the Act. Where that is the case, a temporary absence of a party due, for example, to an interstate or international business trip or an absence due to the special circumstance of, say, hospitalisation, will not vitiate the existence of a marital relationship[17]. In this matter, the marital relationship did not exist at any time and s 6A(5) of the Act is not applicable.
[17] See Harris v Trustee Commonwealth Superannuation Scheme (2006) 91 ALD 30 at 45; and Gray v Defence Force Retirement and Death Benefits Authority [2004] AATA 450 at para [34].
CONCLUSION
25. I am satisfied that Ms Hancox did not have a marital relationship with Mr Stevens at the time of his death and was not his spouse at that time. Accordingly, she is not entitled to a pension in accordance with s 39 of the Act.
DECISION
26. I affirm the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: ........................[Sgd].....................................................
Elizabeth Young, Research AssociateDate/s of Hearing 14 October 2008
Date of Decision 10 November 2008
The Applicant was self represented
Counsel for the Respondent Mr Andrew Dillon
Solicitor for the Respondent Mr Tony Giugni, Australian Government Solicitor
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