Janet Roberts-Billett and Commonwealth Superannuation Corporation
[2014] AATA 415
•25 June 2014
[2014] AATA 415
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2711
Re
Janet Roberts-Billett
APPLICANT
And
Commonwealth Superannuation Corporation
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 25 June 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
SUPERANNUATION – spouse pension – widow – applicant remarried husband shortly before his death – applicant not living with husband – whether apart due to special circumstances – remittal by Federal Court to explain reason for a particular finding more fully – decision affirmed
Legislation
Defence Force Retirement and Death Benefits Act 1973 sections 6A, 6B, 39
Cases
Roberts-Billett and Commonwealth Superannuation Corporation [2013] AATA 440Roberts-Billettt v Commonwealth Superannuation Corporation [2013] FCA 1328
REASONS FOR DECISION
Regina Perton, Member
25 June 2014
Janet Roberts-Billett is the widow of the late Royston Stanley Billett who died on 19 March 2010. Mr Billett retired from the Defence Force on 8 April 1985 after more than 15 years of service. Mrs Roberts-Billett and Mr Billett remarried eight days before his death after having separated and divorced years earlier.
On 3 June 2010 Mrs Roberts-Billett applied for a spouse benefit under the Defence Force Retirement and Death Benefits Act 1973 (the Act). On 24 August 2010 a delegate of the Defence Force Retirement and Death Benefits Authority (the Authority) refused the benefit on the basis that Mrs Roberts-Billett did not meet the definition of surviving spouse in the Act. On review, the Authority affirmed the delegate's decision on 6 June 2011. On 27 June 2013, this Tribunal affirmed the reviewable decision (Roberts-Billett and Commonwealth Superannuation Corporation [2013] AATA 440).
Mrs Roberts-Billett lodged an appeal in the Federal Court. On 6 December 2013, the Court remitted the matter by consent to the Tribunal (Roberts-Billett v Commonwealth Superannuation Corporation [2013] FCA 1328) with the following orders:
1. The decision of the Administrative Appeals Tribunal in Janet Roberts-Billett v Commonwealth Superannuation Corporation [2013] AATA 440 is set aside.
2. The Tribunal’s reasons for decision are inadequate because they do not explain the Tribunal’s finding that s 6A(5) of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”) does not apply in this case.
3. The decision is remitted to the Tribunal with the direction that:
(a) the Tribunal consider the Applicant’s argument that although she may not actually have been living with the deceased at the time of his death nevertheless in the circumstances the Corporation (and the Tribunal on appeal) ought to have been satisfied that the Applicant and the deceased would have been living together during that period but for a period of absence because of special circumstances, namely the deceased’s psychiatric illness followed by his final physical illness, as contemplated by s 6A(5) of the Act; and
(b) the Tribunal give reasons in relation to its finding in relation to s 6A(5) of the Act.
4. There is no order as to costs.
The Tribunal’s earlier reasons for decision published in June 2013 set out the background and findings in relation to the application for review. This document sets out more fully the reasons why the Tribunal found in its original decision that s 6A(5) of the Act does not apply. During a directions hearing, the parties advised the Tribunal that they did not wish to put forward any further evidence or submissions following the remittal.
Legislation
Section 6A(5) of the Act states:
…
(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).
Tribunal Deliberations
Mr Billett and Mrs Roberts-Billett remarried eight days before his death. They had not been living together in the years preceding Mr Billett’s final hospitalisation. Mr Billett appears to have been aware, as was Mrs Roberts-Billett, that at the time of their remarriage, it was unlikely that they would be living together in the future given his fragile state of health and the nature of his illness.
The Court has directed that the Tribunal consider Mrs Roberts-Billet’s argument that although she may not have been living with Mr Billett at the time of his death that it ought to have been satisfied that she would have been living with him but for special circumstances, namely Mr Billett’s psychiatric illness followed by his final physical illness.
Mrs Roberts-Billett and Mr Billett had not lived together for nine years at the time of his death. Mrs Roberts-Billett left the marital home in early 2001. The marital home was sold in late 2001 and both parties purchased separate properties which were at least one hour drive from each other. They finalised their joint financial affairs in 2005 and were divorced in 2007. While there was some social interaction at family gatherings and other events, their communication with each other prior to meeting up again in late 2009 was sporadic. Mrs Roberts-Billett gave evidence that they did not talk to each other for two years following the divorce until her daughter engineered a meeting between her and Mr Billett in late 2009.
There is no evidence before the Tribunal that either of them encouraged the other to move in together after they met up again in 2009, two years after their divorce. Even when Mrs Roberts-Billett was caring for Mr Billett in his home after the diagnosis of his illness in 2009, she did not stay at his home overnight.
Counsel for Mrs Roberts-Billett, in a written submission dated 4 February 2013, submitted that in all the circumstances of this case, it was the one marital relationship which subsisted throughout, despite its hiccups hurdles, trials and tribulations. He also suggested that the divorce… was an interruption , to, but not an end to, their marital relationship. The Tribunal does not accept that it was the one marital relationship or that the divorce ought to be ignored.
The Tribunal is not satisfied that the legal dissolution of the marriage, followed by two years of deliberate lack of contact between the former spouses, can be viewed as one marital relationship. Furthermore, there is no evidence that Mr Billett’s decision to initiate divorce proceedings was the result of his psychiatric condition. He and Mrs Roberts-Billett had already separated their financial affairs long before the divorce and had not lived together for at least six years by that time. Indeed, his deliberate action in seeking a divorce is an indicator of the termination of the marital relationship.
The Tribunal accepts the evidence of Mr Billett’s friends, Diane Storey and Brian McDougall, that Mr Billett told them he regretted how he had treated Mrs Roberts-Billett. However, expressing regret over choices made about a relationship that has ended, does not mean that a relationship that has officially ended is reinstated.
Ms Storey, the marriage celebrant who had known Mr Billett for some 38 years, gave evidence that she obtained special permission from the court to waive the usual thirty day notice period prior to the marriage because of the terminal nature of Mr Billet’s condition. In her oral evidence, Ms Storey stated that it was unusual to seek a shortening of time and that she had only sought such permission three times in her 20 year career as a marriage celebrant.
In her written statement dated 16 December 2011, Ms Storey described her conversations with Mr Billett prior to the remarriage as follows:
…
He was a brave man. I had always known this. But it took real courage to call me and have a conversation around the issue of a re-marriage.
I took notes because I knew his condition would deteriorate further, and I wanted to be clear in my mind that I understood his request and that I could fulfill my obligations in Law to authorise a VALID marriage.
BILL: “I want to ask Jan to re-marry me; she has been wonderful in her care of my needs. I regret our divorce; I love her, and having read her marvellous book, I have increasing regard for her intellect and capacity as an historian.”
Bill; “Now, in absolute confidence, what is involved, as I don’t have much time left.”
Di: “if this is what you agree both want, we will need to approach The Registrar for Shortening of Time having completed a Notice of Intended Marriage (FORM 13 – regulation 38) as specified under the Marriage act 1961. I am required to record from original documents, details from your Full Birth Certificates, passports and Decrees Absolute.” …
At the time that I had this conversation with Bill there was no doubt in my mind about his genuine desire and sincerity in wanting to remarry Jan and there was no doubt in my mind as to his testamentary capacity.
Once Bill happily confirmed that his proposal had been accepted, I set about arranging two letters of support [from his treating specialists]…
On 11 March I visited Bill and Jan at his bedside, recorded details from legal documents in the Notice of Intended Marriage document and, by arrangement went to the Geelong Law Court where the Registrar… authorised the shortening of time. I officiated at the marriage that afternoon …
It was a poignant happy event, yet, heartbreaking, as Bill was soon wheeled off to theatre for a further procedure. But he left his hospital room with a smile on his face and a heart that I felt was no longer burdened by regret.
The Tribunal is satisfied that the remarriage took place after Mr Billett had already been in hospital for several weeks and that he knew his condition was terminal. Mrs Robert-Billett stated that he was emaciated and weighed less than 50 kilos and that she could do little to assist him. It was painful for him to have anyone touch him. The oral evidence indicates that Mrs Roberts-Billett also knew that he probably had little time left. When Mr Billet proposed to Mrs Roberts-Billet, it can be inferred from the evidence that she accepted the proposal knowing that they were unlikely to be living together following the remarriage. They had not lived together for some nine years prior to the remarriage. The Tribunal finds, on the balance of probabilities, that Mr Billett and Mrs Roberts-Billett would not have been living together after the remarriage given the poor state in which Mr Billett was at that time.
In its Statement of Facts, Issues and Contentions dated 3 February 2012, the respondent provided the following written submission:
36. The respondent contends that the evidence does not support the existence of a marital relationship between the applicant and the deceased at the time of his death. The respondent contends that the couple’s marital relationship had been severed due to their separation, financial settlement and the subsequent divorce. Further, despite the applicant and the deceased’s contact resuming in August 2009 and the subsequent remarriage, the respondent contends that the relationship during this period was not a marital relationship. The available evidence supports the view that the couple’s relationship was similar to a ‘patient-carer’ relationship
37. The respondent contends that s 6A(5) does not apply because there has not been any absence from any existing state of affairs. The applicant had not lived with the deceased for some nine years when he died.
[Emphasis in original].
The Tribunal concurs with the respondent’s submission. The Tribunal is of the view that Mrs Roberts-Billett would not have been living with the Mr Billett after their remarriage as it took place in circumstances where both parties to the marriage knew that Mr Billett had only a short time to live. Ms Storey’s evidence supports that Mr Billett was fully aware of his circumstances.
The Tribunal finds that at the time of Mr Billett’s death, he and Mrs Roberts-Billett could not be taken to be living with each other during that period except for a period of temporary absence or absence because of special circumstances. The Tribunal does not accept Mrs Roberts-Billett’s counsel’s submission that the relationship continued despite the divorce and separation of some nine years. Furthermore, at the time of their remarriage, there was no prospect of them living together.
The Tribunal is not satisfied that Mrs Roberts-Billett meets the criteria in s 6A(5) of the Act for the reasons set out above.
DECISION
The Tribunal affirms the decision under review
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member [sgd]........................................................................
Associate
Dated 25 June 2014
Date(s) of hearing 4 February 2014 Solicitors for the Applicant David Bullard, Bullards Barristers and Solicitors Solicitors for the Respondent Meredith Allen, Australian Government Solicitor
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