Janet Roberts-Billett and Commonwealth Superannuation Corporation
[2013] AATA 440
[2013] AATA 440
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2711
Re
Janet Roberts-Billett
APPLICANT
And
Commonwealth Superannuation Corporation
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 27 June 2013 Place Melbourne The Tribunal affirms the decision under review.
...............................[sgd].........................................
Regina Perton, Member
SUPERANNUATION - spouse pension – widow – applicant remarried husband shortly before death – applicant not living with husband – whether applicant dependent on deceased – whether divorce due to illness – whether apart due to special circumstances – decision under review affirmed.
Defence Force Retirement and Death Benefits Act 1973 sections 6A, 6B, 39
Salton and Commonwealth Superannuation Corporation [2012] AATA 305
Salton v Commonwealth Superannuation Corporation [2013] FCA 12
REASONS FOR DECISION
Regina Perton, Member
27 June 2013
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 25 years of service. Mrs Roberts-Billett and Mr Billett remarried eight days before his death after having separated and divorced years earlier.
On 20 July 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 12 July 2011 Mrs Roberts-Billett lodged an application for review with the Tribunal.
The Tribunal must determine whether Mrs Roberts-Billett meets any of the possible criteria as a surviving spouse contained in the Act.
THE RELATIONSHIP
There is no disagreement between the parties on the essential facts in the case. Mrs Roberts-Billett and Mr Billett were first married on 16 September 1989. They were both divorced from previous partners and each had children from previous relationships. Mrs Roberts-Billett and Mr Billett lived together as husband and wife until they separated on 23 January 2001.
On 21 May 2001 a consent order was made in the Federal Magistrates Court requiring Mr Billett to pay spousal maintenance to Mrs Roberts-Billett. In mid-2001 the marital home was sold with settlement occurring on 30 September 2001. Mrs Roberts-Billett and Mr Billett each bought separate properties. Mrs Roberts-Billett bought an apartment in Toorak in November 2001 in which she is still living. Mr Billett bought a unit in Leopold near Geelong where he lived until hospitalised shortly before his death.
On 1 June 2005 Mrs Roberts-Billett and Mr Billett entered into a property settlement in the Federal Magistrates Court under the Family Law Act 1975. Spousal maintenance payments ceased and Mrs Roberts-Billett received part of Mr Billett’s superannuation entitlements payable as a lump sum. The agreement states:
THE COURT NOTES:
(a) that the parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.
On 31 May 2007 Mrs Roberts-Billett and Mr Billett divorced. It was Mr Billett’s decision to apply for divorce. A copy of a letter dated 30 January 2007 from Mrs Roberts-Billett to Mr Billett provided to the Authority by Mrs Roberts-Billett states:
I am still in a state of shock relating to your decision re divorce. I feel very upset that you have not had the courtesy or courage to discuss the situation with me, which might help me to understand why?
I have tried over the last six years to be as supportive of you as possible, from a distance I know. I have loved and cared about you but it was not my choice to suffer and continue to suffer the verbal abuse and flashbacks I experienced before I left in 2001. I hoped it would not come to this…
Mrs Roberts-Billett had sporadic contact with Mr Billett after they separated and subsequently divorced. In August 2009 Mrs Roberts-Billett's daughter, Richenda, arranged for her mother to have lunch with Mr Billett. In late September or October 2009 Mr Billett was diagnosed with cancer of the oesophagus. Mrs Roberts-Billett acted in a caring role for Mr Billett and visited him frequently from the time of his diagnosis to the time of death. She did not move into his home but travelled from Melbourne to Geelong frequently. Mr Billett reimbursed Mrs Roberts-Billett for the cost of her travel and other expenses incurred in visiting and caring for him.
Mr Billett was hospitalised on 7 January 2010. On 11 March 2010 Mr Billett and Mrs Roberts-Billett were remarried at the hospital. He died eight days later.
Mr Billett made a fresh will on 17 March 2010, two days before he died. He left his property in Leopold to Mrs Roberts-Billett and other items and the remainder of his estate to others including his brother, his son and to Mrs Roberts-Billett’s daughter, Richenda.
On 23 March 2010 Mrs Roberts-Billett forwarded to the Authority a copy of the marriage certificate dated 11 March 2010 and an enduring power of attorney dated 30 June 1998. The death certificate for Mr Billett was not issued until 12 April 2010.
Mrs Roberts-Billett provided a statement dated 22 December 2011 and gave oral evidence. Mrs Roberts-Billett stated that she obtained an Arts degree from Monash University in 1966 and trained as a secondary teacher. She had two children by her first husband, Richenda born in 1971 and Samuel born in 1973. She and her first husband separated in 1986.
Mrs Roberts-Billett first met Mr Billett in late 1987 while he was studying for an Honours degree at Deakin University. He later obtained a Masters’ degree from Melbourne University. Mr Billett was also divorced and had two children born in 1961 and 1963 respectively. Mr Billett and Mrs Roberts-Billett's relationship developed over the next two years and they were married at the Deakin University Chapel on 16 September 1989. Mrs Roberts-Billett was living in Geelong at that time. Following the marriage they each sold their respective houses, pooled resources and purchased a home in East Geelong. Mrs Roberts-Billett's children, then aged 18 and 16, lived with them.
Six months after their marriage Mr Billett underwent a quadruple heart bypass. Apart from his heart problems, the first years of their marriage were good. Mrs Roberts-Billett noticed some tensions in Mr Billett but they did not seem to initially be directed at her. However gradually some symptoms of what she now understands was post-traumatic stress disorder (PTSD) developed. It gradually manifested itself as anger and paranoia. There was tension between Mr Billett and Mrs Roberts-Billett's son and in 1993 there was a physical altercation. Mrs Roberts-Billett's son, who was then aged 20, decided to leave the family home. Mrs Roberts-Billett provided him with financial support.
During the 1990s Mrs Roberts-Billett was teaching at a “tough” high school. Life was stressful at work and at home. Mr Billett drank heavily which exacerbated his anger and irritability. He drove erratically often exhibiting road rage.
Early in their marriage they shared many interests. They would often travel to the Naval and Military Club in Melbourne to dine with friends but the social outings gradually petered out. Mr Billett’s outbursts became more frequent. Although she did not understand what was happening at the time, Mrs Roberts-Billett felt it had something to do with Mr Billett’s war experiences and she obtained counselling through the Department of Veterans’ Affairs (DVA). Mrs Roberts-Billett said that Mr Billett was a delight to be with when he was in a good mood, however she did not know from one moment to the next when he might “explode”.
Mr Billett encouraged Mrs Roberts-Billett to retire from teaching earlier than was financially advantageous for her to do so because of the stressful nature of the work. She did so in 1998 and became dependent upon him for income support. Mr Billett’s anger and verbal outbursts were increasing in degree and frequency. Mr Billett was undertaking security work in preparation for the Sydney Olympic Games in 2000 which required him to travel frequently. In the meantime Mrs Roberts-Billett undertook a commission from the Naval and Military Club to write a book which involved interviewing 50 World War II veterans in order to record their stories. The book entitled, Memories of War, was published in 2004.
In December 2000 the British government awarded Mr Billett an ex gratia payment of about $13,000 in relation to his service in Cyprus. Mr Billett had been in the British Defence Forces before migrating to Australia in 1969 and joining the Australian defence force. He also served in the Falklands Islands, Singapore and Hong Kong with the British forces. While with the Australian forces, he joined the SAS and spent time in Vietnam and Papua Nuigini.
On 31 December 2000, after the couple had attended a lunch in Melbourne, Mrs Roberts-Billett went to see the New Year's Eve fireworks in Geelong but Mr Bill could not cope with them and remained at home. Upon her return, she found Mr Billett to be very drunk, deranged and physically intimidating. Mrs Roberts-Billett was terrified. Other incidents in the weeks following caused Mrs Robert-Billet to have serious concerns about her safety.
Mrs Roberts-Billett sought professional advice and based on that advice, determined that it was not safe for her to remain with Mr Billett. In late January 2001 Mrs Roberts-Billett left the marital home and lived in her son's house for some 10 months. After she left the marital home, relations with Mr Billett were quite amicable. For example he helped her pack up her belongings. Mrs Roberts-Billett asked him if he wanted her to return home on strict conditions that he must seek treatment for his psychological condition, he declined, saying that she would just abandon him again.
Mrs Roberts-Billett bought her current apartment in Toorak with her savings and a mortgage. There was a subsequent sale of the marital property and spousal maintenance. After the final financial order in 2005, she paid out her mortgage, updated her car, did some renovations to her apartment and took an overseas trip as well as taking out an allocated pension.
Mrs Roberts-Billett stated that despite the trauma of these events and their separation she and Mr Billett remained married and were in contact with each other regularly. He lived past Geelong and she in Melbourne. However he would visit Melbourne frequently and they would have a coffee or a meal or attend functions at the Naval and Military Club. Mrs Roberts-Billett regularly visited her mother who lived in Geelong and arranged to meet with Mr Billett from time to time. She stated that they would go for a walk to discuss things. They exchanged gifts at Christmas and birthdays. Mr Billett maintained contact with Mrs Roberts-Billett's mother until her mother moved from Geelong to Melbourne.
When Mrs Roberts-Billett's book was published in 2004, Mr Billett attended the launch and paid the entry fee for some of her friends to attend. Despite their continued affection for each other and their ongoing contact, Mrs Roberts-Billett declined to either stay with him overnight or invite him to have a meal at her home. She had been so traumatised by the events of January 2001 that she could not face the risk of being alone with him in the evening when he was likely to be drinking and at risk of suffering flashbacks. She stated that she had no fear of him attacking her when he was sober and rational. Mrs Roberts-Billett is still receiving counselling through DVA in order to treat her anxiety arising from his behaviour.
Mrs Roberts-Billett described herself and Mr Billett as being in a state of amicable and affectionate marriage, but needing to live apart because of his mental illness, from January 2001 until January 2007. She stated that without any forewarning, she received an application for divorce initiated by Mr Billett and served on her by a process server. Mrs Roberts-Billett met with him in Geelong after she was served with the divorce papers and begged him not to proceed with it as she thought it was insane. However he resisted her pleas and the divorce was effected. There was no contact between Mrs Roberts-Billett and Mr Billett over the next two years.
Mrs Roberts-Billett stated that while she had nothing more to do with Mr Billett during that two-year period, he still travelled to visit her daughter Richenda at her inner Melbourne restaurant. In early to mid-2009 she sent him a book that she knew would interest him and then another. In August 2009 she travelled with her daughter to Geelong. Her daughter expressed a wish to visit Mr Billett but Mrs Roberts-Billett warned her daughter that he might not wish to see her. However he invited them for lunch and it went very well.
In September 2009 Mr Billett called in to visit Mrs Roberts-Billett and informed her that he was going to visit his brother in the UK. He mentioned some problems with his digestive system. While in England his condition worsened. He was unable to eat and became quite ill. Upon his return to Australia in late September 2009, Mrs Roberts-Billett found out that he had not been able to keep any food down. She insisted he see a doctor and that she was coming to Geelong to ensure that he did so. Mr Billett allowed her to take him to the doctor although he resisted her being in the consultation room with him. He was later diagnosed with cancer of the oesophagus and started treatment with chemotherapy and radiotherapy.
Mr Billett was not coping well at home. He told doctors that he could handle things living on his own but he really could not. By the end of October 2009 he was having difficulty eating and was very weak. Mrs Roberts-Billett stated that she rang him every night to see how he was going and soon realised he was not coping. She stated:
25… As I could not allow the man I still deeply cared for to suffer alone, I undertook to care for and help him. However despite his illness I was still too traumatised by the 2001 incidents to stay in the house with him. Accordingly my usual pattern was to drive down to Geelong on Sunday, usually in company with Richenda on her day off from running her restaurant. Together we would clean his house, change the bed, wash his clothes and bedding, dry them, fold them and put them away. Richenda would clean the floors. I would talk to him. I regularly stayed in Geelong for two to three days, visiting him each day to give assistance, and staying overnight with my sister. Richenda would return to her restaurant. Often I would visit him at least twice a week, apart from weekends.
…
27. For the first three months of 2010 he was confined to hospital and I usually spent two or three day stretches into long at a time with him in the hospital and attending to his needs. I would return to Melbourne for a couple of days to attend to my own matters, then spend another couple of days in Geelong with him. I was urged at this time by the Cancer Helpline not to put my life on hold. I cared about him, I still loved him and respected him though I was not in love as a result of his previous behaviour. I could not turn my back on him and walk away, because of my feelings for him. I knew he did not intend to be violent and aggressive… There would not have been any divorce if I had had any say in the matter, we would have remained loving friends in constant contact, just living apart from my safety.
28. In late January 2010 he nearly died of dehydration. During that time he authorised the payment of $7000 to me in order to give me some assistance. Since our separation I had been financially stretched, and over the years had dipped into an annuity that I had established which reduced from $70,000 to $40,000…
29. On 4th March, 2010 Bill gave to his Solicitor instructions for a new Will by which he left his house to me, and divided his personal property, some $120,000, amongst my two children and one of his children… He told me that he wanted to marry me again, and I was delighted. On his instruction I used $2000 of the money he had given me to purchase a wedding ring with some small Argyle diamonds. This was a deeply emotional thing between us, as he used to joke that he had gathered up Argyle diamonds in his early life when doing military exercises in the Kimberley.
30. We asked Di Storey, a mutual friend, who was also a marriage celebrant, to perform the service. She made special efforts to obtain dispensation from the Magistrates’ Court to enable the wedding to take place at short notice at his bedside. Di’s husband Ian, a good friend in his own right, was one of the witnesses….
31. I believe Bill was trying to atone for some of the hurt he had previously caused me in so marrying me in the hope that I would be supported in the future as his widow. However it was much more than that. We did deeply love each other, and deep down, we had not really stopped loving each other, it was just that his mental condition prevented us from expressing it for a period, and from living safely together for the last 10 years of his life….
Mrs Roberts-Billett attached a number of documents to her statement which included documents prepared by Mr Billett in relation to his experiences in Cyprus and other traumas he had suffered. She also attached an obituary that was published in The Age newspaper on 26 April 2010 which she and another friend had written, as well as another obituary published after Mr Billett's death.
In her oral evidence, Mrs Roberts-Billett corroborated much of the information in her comprehensive statement. Mrs Roberts-Billett said that she had found a number of the letters she had written to Mr Billett and other relevant documents among his effects after his death. She also provided information about her financial situation at the time they separated and at the time of the 2005 financial settlement.
During cross-examination, Mrs Roberts-Billett confirmed that after the divorce she changed her will taking Mr Billett out of it and dividing her estate between her two children.
Asked about why she had sent a document to the authorities on 23 March 2010 mentioning only the marriage and the power-of-attorney but not mentioning that Mr Billett had died four days earlier, she was not sure why she had done so.
Mrs Roberts-Billett agreed that while there were many reasons for the remarriage, one of them was Mr Billett’s wish to provide for her after his death. She said that she believed Mr Billett felt guilt about applying for the divorce. It had also been a very healing experience for her to be asked to remarry given the difficult behaviour she experienced in their first marriage. Asked why she had agreed to remarry Mr Billett who was extremely ill at the time, Mrs Roberts‑Billett told the Tribunal she could not say no, as Mr Billet would not have been able to handle the rejection.
Mrs Roberts-Billett was referred to an application form, Spouse of a Pensioner, that she completed on 3 June 2010. She was asked why she had answered no to a question asking whether the length of her marriage or registered relationship was less than three years. Mrs Roberts-Billett said it was because they had been married previously and the relationship dated back to when they were first married on 16 September 1989. She said that she had also not provided information about dissolution of the marriage and the Family Court proceedings because they were again married. She conceded that her responses could have been misleading but the form was confusing as the questions did not provide for a situation like hers.
To a question on the form asking whether she was wholly or substantially dependent upon the deceased at the date of his death, she had answered no. Mrs Roberts-Billett said that when she later reconsidered the matter, she had realised that she was partially, but not wholly dependent on Mr Billett. Mrs Roberts-Billett conceded that she wasn't dependent on Mr Billett at all in July 2009. Asked what had changed since then, Mrs Roberts-Billett said her income was such that she would have not been able to visit Geelong on a regular basis without having some help. She had expenses because she was living away from home. She could not stay at Mr Billett's house and that meant she stayed at her sister’s home. She had to provide meals and there was wear and tear on her car as well as other expenses. When it was suggested to her that he was really compensating her for her expenses when she was visiting him during his illness, Mrs Roberts-Billett conceded that it could be looked at in that way but there was also the fact that he obviously needed her support.
Mrs Diane Storey provided a statement dated 16 December 2011 and gave oral evidence. Mrs Storey is a civil celebrant. She performed the hospital ceremony for Mr Billett and Mrs Roberts-Billett. Mrs Storey knew Mr Billett for some 38 years through her husband who was also in the Australian defence force. She has known Mrs Roberts-Billett since approximately 1988. Mrs Storey indicated that Mrs Roberts-Billett sometimes turned to her when the effects of the PTSD were increasingly exhibited in Mr Billet’s behaviour. She indicated that Mrs Roberts-Billett grieved the loss of her marriage to a man she loved, a man who is intellectually her equal and, when well, honourable and marvellous company. In her statement, she described taking notes of Mr Bill’s request that she conduct the remarriage as she knew his condition would deteriorate further.
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.”
Mrs Storey advised Mr Billett that she needed to approach the registrar for the shortening of time of a notice of intended marriage. She was required to produce a number of documents including medical reports. Mrs Storey indicated that she had no doubt about Mr Billett’s genuine desire and sincerity in wanting to remarry Mrs Roberts-Billett and she had no doubt in her mind as to his testamentary capacity. The registrar at the Geelong Law Court authorised the shortening of time. Mrs Storey said that she officiated at the marriage on the day she received authority to do so, with her husband and Brian McDougall as witnesses.
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.
Mrs Storey described Mr Billett as feeling exuberant at the prospect of remarrying Mrs Roberts-Billett. Mrs Storey finished her oral evidence by saying:
I want to say that on an end of life journey, in my limited experience in sitting with those who are dying, it is forgiveness and regret and the expression of gratitude which is very much a part of that process, and I felt that, with this dear man, that he had some addressing to do about his own behaviour, and I was honoured to be part of that and, quietly, very happy.
Mr Ian Storey, a former chief inspector of police, had been in the Army Reserve when he met Mr Billett. They had become close friends. Mr Storey stated that he was not the least bit surprised that Mr Billett wanted to marry remarry Mrs Roberts-Billett. He confirmed that he had been a witness at the wedding.
Mr Brian McDougall, the other witness at the remarriage, gave oral evidence and provided a written statement to the Tribunal dated 1 September 2010. He served with Mr Billett in the SAS and were close. Mr Billett contacted him in late 2009 to say he had been diagnosed with cancer in the throat region. They had discussed who should be informed. Because of his close friendship with Mr Billett Mr McDougall offered to handle all welfare matters related to Mr Billett’s situation. Mr McDougall travelled from Melbourne to Geelong an average of three times a week, initially to his home in Leopold and later to the hospital where he became a patient.
On 28 December 2009, after Mr McDougall collected mail from Mr Billett’s post office box, Mr Billett told him that he had been extremely foolish about what he had done to Mrs Roberts-Billett or words to that effect, and that he wanted to do something about it. Mr McDougall described Mr Billett as an honourable man who was expressing his regret for being the cause of his and his wife's marital breakup and divorce due to his PTSD. He told Mr McDougall that he should never have divorced Mrs Roberts-Billet and that he wanted to provide for Mrs Roberts-Billett if he was going to die. Mr McDougall confirmed that Mrs Roberts-Billett was the person who cared for him. He stated that she often drove to Geelong to care for Mr Billett.
Mr McDougall confirmed that it was definitely on 28 December 2009 that Mr Billett had first suggested that he wished to remarry Mrs Roberts-Billett. Questioned about what Mr McDougall thought Mr Billet wanted to achieve by remarrying Mrs Roberts-Billett he said:
I think he wanted to salve his conscience…I think he had come to the realisation, if ever he had left that realisation, and he certainly owed a great debt to Jan and that he had done her a wrong and he wanted to get that right…
Sam Pritchard, Mrs Roberts-Billett's son, gave evidence. He provided a statement received by the Tribunal on 29 December 2011 stating that when his mother first met Mr Billett, he was a teenage boy lacking direction and confidence. Mr Billett became a father figure to him and they got on well for the first few years. However there were changes in Mr Billett’s personality which affected everyone around him. He became difficult to live with and whereas his mother and Mr Billett had been happy together, things changed. Friction between the two culminated in an argument during which Mr Billett struck Mr Pritchard. Mr Pritchard subsequently left home. Mr Pritchard said that his mother had always cared for and loved Mr Billett. She had tried to maintain contact with him even after they separated.
Mr Pritchard said that Mr Billett had attended his wedding on 1 November 2003 but they had had little contact for several years thereafter. In mid-2009 Mr Billett contacted him in an effort to reconcile. They had lunch, meeting several times before Mr Billett became ill in October 2009. He confirmed that as Mr Billett became seriously unwell his mother became Mr Billett’s primary carer. He said that his sister and he helped his mother by taking her down to visit Mr Billett, spending time with him and caring for his needs. He said that his mother had continued to regard herself as Mr Billett's wife. It was Mr Pritchard's view that if Mr Billett had been able to acknowledge his illness 10 years earlier, that Mr Billett’s and his mother's life would have been very different.
Richenda Pritchard, Mrs Roberts-Billett’s daughter, provided a statement dated 7 December 2011:
My mother left Bill in Jan 2001, after deciding that she could no longer tolerate his PTSD and its affects on their relationship.
I was witness to one event which was just before she left. I went down to Geelong for dinner, and during the dinner bill became very nasty and aggressive verbally. He had been drinking which always exacerbated his bad temper. Mum was upset, and I was as well. I remember a particular reference to a portrait of mum, which Bill talked about defacing in a very nasty manner. It was a direct attack on her and very unpleasant to witness.
… Bill was a troubled man, but a good man and he cared greatly for mum, and for us. I still loved him, and he and I maintained contact throughout the time of the separation and divorce. Bill and I spoke about their divorce. He felt that he had to divorce mum as he needed to move on emotionally and he felt that the separation was like being in limbo. I understood that Bill needed to act. He was a very strong person and very stubborn, and although I knew that he was troubled, he could just never admit that he needed help of any sort.
…
At one time, around August 2009, Mum asked me if she could take me to Geelong to get some orchid plants for the restaurant. The orchid farm was in Point Lonsdale, near where Bill lived, and so I rang him to tell him that I was coming down his way. I told him that I would have mum with me but he offered to have us for lunch. When we arrived he had prepared lunch for us, and he and Mum started chatting like old friends. It was really quite amazing to see how much they still had in common and how much they had to talk about. It was very special for me to see how they still had so many shared interests and such an obvious connection still. It was a lovely day, and one that I think helped both mum and Bill realise that they could at least be friends.
…
Bill became very ill around October 2009. Mum and he contacted each other more frequently, and she told me that he had been diagnosed with cancer. We both cared about him and so decided that we would go and see him at least once a week. Mum would pick me up and we would drive down to Point Lonsdale. She would also go during the week to help him get his mail, shopping etc and to help with cleaning. Over the next few months I would go down as often as I could, but mum basically became his part-time carer….
…
My thoughts are that Bill always loved mum, and she him. His life experiences damaged him, and caused much grief in his family relationships. Bill was a very complex man, but he was also very loving and honourable. If he had had sought help for his PTSD, his marriage to my mum might have continued. But he was incredibly fortunate, because in the end he was able to find peace…
Dr Paul Collier, Consultant Psychiatrist, provided a report dated 11 August 2010 to Mrs Roberts-Billett’s previous solicitors at their request:
…
I first saw Mr Billett at the Austin and Repatriation Medical Centre Veterans’ Psychiatric Outpatients Clinic in 1999.
…
From 2000, Mr Billett saw me at my… private practice consulting rooms… I saw him at varying intervals continuously from 1999 until August 2005.
Mr Billett was first referred to me by cardiologist Dr G Wagner, due to a problem of excessive alcohol use and associated liver dysfunction. Dr Wagner was concerned not only with alcohol intake, but with the amount of marital friction that was occurring.
Mr Billett had an extensive service history with the British and Australian forces. He first joined the Royal Marines band service in the UK at age 14. Subsequently he spent periods of service in the British Army, and finally in the Australian Army SAS regiment. He spent a number of periods in combat zones…
Mr Billett outlined a range of traumatic experiences occurring during his service…
He reported a range of post-traumatic symptoms…
…
Mr Billett’s personality style was characterised by excessive-compulsive traits of orderliness, meticulousness and punctuality.
During my association with Mr Billett, I saw him on approximately 50 occasions in total… I treated his post-traumatic symptoms with… antidepressant medication… and supportive psychotherapy. He obtained some symptomatic improvement with these therapeutic measures.
…
Irritability and anger are typical features of post-traumatic stress disorder. Indeed, excessive irritability is one of the diagnostic criteria for this condition. Irritability and anger can also be exacerbated by intoxication with alcohol.
From my notes, it is quite clear that irritability and anger on Mr Billett's part were significant factors affecting Mr and Mrs Billett's relationship.
Mr Billett expressed some concerns about Mrs Billett’s behaviour in addition, at times. He was troubled by matters such as her propensity to change arrangements that have been put in place, which irritated him. He expressed concern about communication problems and some expressions of irritability and anger on her part. However, and while no doubt in every marital breakdown there are contributions from each spouse, I am of the opinion that the level of distress caused to Mrs Billett by Mr Billett’s anger was such that it was impractical for them to continue living together….
LEGISLATION
Section 39 of the Act allows for a widow or widower to claim a spouse pension following the death of their partner:
39 Spouse’s pension on death of recipient member
(1) Where a member of the scheme who is a recipient member dies and is survived by a spouse, then, subject to sections 47 and 75, the spouse is entitled to a pension…
Sections 6A and 6B of the Act set out what constitutes a marital or couple relationship for the purposes of being paid the spouse pension:
6A Marital or couple relationship
(1) For the purposes of this Act, a person had a marital or couple 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 or partner 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 or partner 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 or partner 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 or partner 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 or partner 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 or couple 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;
(ba) the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901, as a kind of relationship prescribed for the purposes of that section;
(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; or
(iii) a child of both of the persons for the purposes of the Family Law Act 1975;
(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).
6B Spouse who survives a deceased person
(1) In this section:
deceased person means a person who was, at the time of his or her death, a contributing member, a recipient member or a person in respect of whom deferred benefits were applicable.
(2) For the purposes of this Act, a person is a spouse who survives a deceased person if the person had a marital or couple relationship with the deceased person at the time of the death of the deceased person.
(3) In spite of subsection (2), a person is taken to be a spouse who survives a deceased person if:
(a) the person had previously had a marital or couple relationship with the deceased person; and
(b) the person did not, at the time of the death, have a marital or couple relationship with the deceased person but was legally married to the deceased person; and
(d) in the Authority’s opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.
WAS MRS ROBERTS-BILLETT A “SURVIVING SPOUSE”?
In the eight days between their remarriage and Mr Billett’s death, Mr Billett was hospitalised and seriously ill. Hence, the couple were unable to live together following the remarriage and had not lived together for the three years preceding Mr Billett’s death.
The Tribunal was provided with written submissions subsequent to the hearing. Counsel for Mrs Roberts-Billett, Mr Thomson, submitted that but for Mr Billett’s psychiatric illness, he and Mrs Roberts-Billett would have been happily living together until the time of his death (section 6A(5) of the Act). There would have been no separation and divorce. He submitted that neither Mr Billett nor Mrs Roberts-Billett were happy about the separation and that they still loved each other despite the separation and divorce. He suggested that Mr Billett was remorseful that they had been unable to live together as a result of his behaviour.
Mr Thomson referenced the evidence given to the Tribunal by several witnesses as to Mr Billett’s regret about the divorce and his treatment of Mrs Roberts-Billett. Mr Thomson also suggested that Mr Billett’s March 2010 will and his failure to make a fresh will after his divorce from Mrs Roberts-Billett spoke of the affection he maintained for her.
Mr Thomson also submitted that Mrs Roberts-Billett satisfied section 6B of the Act in that she was Mr Billett’s lawful wife and was substantially financially dependent on him at the time of his death:
In that she had been in receipt of a spouse maintenance payment form [sic] the deceased until their property settlement in 2005, and the superannuation split organised in her favour at that time was substantially in satisfaction of that maintenance obligation, albeit that it had taken the form of a lump sum rather than an ongoing pension, and was supplemented by the further payments made to her by the deceased in the months prior to his death.
Counsel for the respondent, Mr Giugni, submitted that Mrs Roberts-Billett could only succeed in the application if she was in a marital relationship with Mr Billett at the time he died or, alternatively, wholly or substantially dependent on him at that time.
Mr Giugni submitted that Mrs Roberts-Billett’s marital relationship with Mr Billett ended, at the latest, with their divorce in 2007. He stated that a reliance on special circumstances in Section 6A(5) of the Act is unfounded. He submitted that s 6A(5) operates to deem the existence of the requirement to live together, where the indicators are that the marital relationship otherwise subsists. In this case, he submitted, all the indicators suggested that the marital relationship had ended and that it did not subsist beyond 2007. Mr Giugni submitted it was wrong to suggest that s 6A(5) is capable of deeming the existence of a marital relationship itself where special circumstances may have caused its breakdown. He argued that despite the remarriage in 2010, a marital relationship of the kind required in the Act had not been re-established.
Mr Giugni also submitted that Mrs Roberts-Billett was not financially dependent on Mr Billett at the time he died. Rather the parties had been financially independent from each other since 2005.
Mr Thomson, in a further submission, urged the Tribunal to find that the marital relationship commenced in 1989 and continued till Mr Billet’s death. He submitted that :
5.…Whilst the divorce had the potential to have ended their personal relationship, in the circumstances it didn’t. Mrs. Robert-Billett always remained ready to resume their relationship, and would have desired nothing better than to resume living together if he could control his psychiatric illness. For his part, Mr. Billett commenced to break of the relationship, but found that he, too, could not “move on” and was drawn back to the woman he so admired and respected.
6. Accordingly, the divorce in the circumstances was an interruption, to, but not an end to, their marital relationship.
At the time of the hearing and initial submissions, there were few recent relevant decisions. The Tribunal, differently constituted, handed down a decision in May 2012 involving a spouse pension under the Act. The widow in that matter had attributed the couple’s failure to live together for many years to her husband’s serious mental condition (Salton and Commonwealth Superannuation Corporation [2012] AATA 305). That case was the subject of an appeal to the Federal Court. The Tribunal, with agreement of the parties, decided to await the outcome of that appeal. A decision was handed down in January 2013 (Salton v Commonwealth Superannuation Corporation [2013] FCA 12). The Tribunal allowed the parties to make further submissions in light of that decision.
Mr Giugni, on behalf of the respondent, provided further submissions to reflect the Federal Court’s decision in Salton on 4 February 2013:
4. The Court's findings on s6A(5) are consistent with the respondent's approach…
5. The court accepted that a physical separation caused and perpetuated by a special circumstance may not be fatal to the finding of a marital relationship within the meaning of the DFRDB Act… The respondent accepts that it is theoretically possible that two persons in a marital relationship may not live together permanently due to a special circumstance, yet a marital relationship may subsist.
6. In the present case, and for the reasons set out in the respondent's earlier submissions, the Tribunal ought not to be satisfied that a marital relationship subsisted at least from the time of the 2007 divorce (if not earlier).
Mr Thomson, on behalf of the applicant, submitted that the law has not been changed by the Salton decision:
5. The Appeal by Ms Salton failed because the Court held that there was no error by the Tribunal in its application of the test to the facts of the case. Although illness of the member may well have contributed to the initial separation, “the Tribunal found at [78] in effect that it was not satisfied that, leaving aside his mental conditions and his alcoholism, Mr Dixon and Ms Salton would have been likely to have been living together in a bona fide domestic relationship at the time of his death.” [43]
6. On behalf of Mrs Roberts-Billett, it is submitted that the opposite was the case on her facts. There was evident deep love between the parties, that both regretted the member obtaining the divorce (Mrs Roberts-Billett from the time of its happening, and Mr Billett from a little later), and the divorce only occurred because Mr Billett was resentful as his wife moving out of the home, and she only moved out because of his uncontrollable violence brought about by his mental illness. Neither could move on to any new relationship; they continue to communicate in a civil fashion at ceremonial occasions, and Mr Billett apparently put out feelers towards reconciliation by maintaining contact with her children, as a prelude to resuming a loving relationship, which led to extraordinary sacrifices by Mrs Roberts-Billett to care for him in his illness, and to the re-marriage ceremony which was evidenced by deep and abiding love for each other, and an overall regret that his mental and physical illnesses would likely prevent them ever being able to live together again, however much they desired it.
7. If the Tribunal accepts this view of the facts, then it is submitted that they take the case away from the facts found in Ms Salton’s case, and for the very reasons that her application failed, that by Mrs Roberts-Billett should succeed.
The Tribunal is satisfied that from 1989 to 2001 Mrs Roberts-Billett and Mr Billett were living together. At the time of Mr Billett’s death, he and Mrs Roberts-Billett had not lived together for some nine years. The Tribunal accepts Mrs Roberts-Billett’s evidence that they stopped living together in 2001 because of Mr Billett’s illness. However, once they were divorced in 2007, the marital relationship ended. It may well have ended even earlier than the 2007 divorce.
Even though Mrs Roberts-Billett resisted the divorce, there is no evidence that she and Mr Billett co-habited or both considered themselves in a marital relationship after the divorce. The Tribunal notes that Mrs Roberts-Billett gave evidence that they did not speak to each other for two years’ post-divorce. They both lived in separate properties more than an hours’ drive apart and they had severed their financial ties.
The Tribunal does not accept Mr Thomson’s submission that both parties continued their relationship despite their divorce. The Tribunal is not convinced that keeping in contact with his stepchildren, namely Richenda Pritchard from time to time over the years following the separation and renewing contact with Sam Pritchard after some years of no contact does , of itself, constitute feelers towards reconciliation. The Tribunal notes that Mr Billett attended Sam Pritchard’s wedding in 2003 and the launch of Mrs Roberts-Billett’s book in 2004. Maintaining contact with a former spouse does not necessarily, in the Tribunal’s view, constitute an ongoing marital relationship.
The Tribunal accepts that the relationship between Mrs Roberts-Billett and Mr Billett was revived after Mr Billett was diagnosed with cancer. The Tribunal finds that Mrs Roberts-Billett’s role in assisting Mr Billett was initially in the role of carer rather than spouse. The evidence given by Mr McDougall was that Mr Billett first mentioned remarriage after his health had significantly deteriorated in late December 2009 and that he wanted to salve his conscience. The Tribunal accepts that he was very happy to remarry shortly before his death. The evidence indicates that he was aware that he only had a short time to live. He executed a new will so that Mrs Roberts-Billett would receive a significant share of his estate. However, the evidence before the Tribunal indicates that at the time of Mr Billet’s death and for a significant amount of time prior to his death, they were not living in a marital or couple relationship.
The Tribunal is also not satisfied that Mrs Roberts-Billett meets any of the alternative requirements of section 6A(5) of the Act.
Given the Tribunal’s finding that Mrs Roberts-Billett was not in a marital or couple relationship in terms of the definition in section 6A of the Act, she would still be eligible for the spouse pension if she was wholly or substantially dependent upon Mr Billett at the time of his death.
The Tribunal is satisfied that Mrs Roberts-Billett was previously in a marital relationship as defined in the Act and required by s 6B.
Mr Billett and Mrs Roberts-Billett reached a final settlement of their financial affairs in 2005. The court records confirm that the financial relationship between them was severed at that time. The shared asset of the marital home was sold some four years earlier. Each of the parties had already purchased their own homes and, after the 2005 financial settlement, Mrs Roberts-Billett paid out her mortgage, updated her car, took a holiday and took out an annuity.
After she took on the carer's role in relation to her former husband, he reimbursed her for expenses she incurred in travelling from her home to his and for purchases she made or bills she paid on his behalf. Mrs Roberts-Billett stated that while she was caring for him, Mr Roberts gave her $500 near Christmas and $7000 in late January 2010. The Tribunal does not accept that those payments made her wholly or substantially dependent on Mr Billett.
At the time of Mr Billett’s death, Mrs Roberts-Billett owned a mortgage-free home, a car and received some income through her annuity. The Tribunal concurs with the respondent’s submission that the funds Mr Billett provided to her during the caring period were not for ordinary living expenses. Rather they helped her meet the increasing demands that her travel to Geelong to care for Mr Billett placed on her finances.
As indicated earlier, the Tribunal does not accept that the financial settlement in 2005 in which she was granted a portion of Mr Billett’s superannuation can be deemed to be ongoing spousal maintenance beyond 2005.
The Tribunal finds that Mrs Roberts Billett was not financially dependent, either wholly or substantially, on Mr Billett when he died. Therefore Mrs Roberts Billett does not meet section 6B of the Act. She is therefore not eligible for the pension sought.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 71 (seventy one) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member .......................[sgd].................................................
Associate
Dated 27 June 2013
Date of hearing 4 June 2012 Date final submissions received 8 February 2013 Counsel for the Applicant Mr C Thomson Solicitors for the Applicant Bullards Counsel for the Respondent Mr T Giugni Solicitors for the Respondent Australian Government Solicitor
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