Jenkins v Repatriation Commission

[1999] FCA 269

FEDERAL COURT OF AUSTRALIA

Jenkins v Repatriation Commission [1999] FCA 269

JOAN ELEANOR JENKINS v THE REPATRIATION COMMISSION
N 28 OF 1999

HELY J

22 MARCH 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 28 OF 1999

BETWEEN:	JOAN ELEANOR JENKINS Applicant
AND:	THE REPATRIATION COMMISSION Respondent
JUDGE:	HELY J
DATE OF ORDER:	22 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        No order as to costs.

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	N 28 OF 1999

BETWEEN:	JOAN ELEANOR JENKINS Applicant
AND:	THE REPATRIATION COMMISSION Respondent

JUDGE:	HELY J
DATE:	22 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975. The issue is whether the Administrative Appeals Tribunal, Veterans Appeals Division (“AAT”), made an error of law in concluding that the applicant is not a dependant of the late Alan Milton Jenkins (“the veteran”) within the meaning of the relevant provisions of the Veterans’ Entitlements Act 1986 (“the Act”). In coming to that conclusion, AAT affirmed the decision of the Repatriation Commission, which had itself been affirmed by the Veterans’ Review Board.

   The Legislative Scheme

2. The Commonwealth is liable to pay pensions to dependants of veterans whose deaths are war-caused: Act, s 13(1).  Whether the veteran’s death was war-caused has not been the subject of determination.  The only issue before AAT was that of dependency.  This issue was raised as a preliminary question.

3. The definition of dependant in s 11 of the Act relevantly includes the partner (s 11(1)(a)) or widow (s 11(1)(c)) of the veteran. The applicant was not legally married to the veteran at the time of the veteran’s death. Thus the relevant part of the s 5E(1) definition of widow is:

   “(a)     a woman who was the partner of a man immediately before he died.”

   Partner is defined in s 5E(1) as the other member of a couple.

4. Member of a couple is defined in s 5E(2).  The relevant part of the subsection for present purposes is s 5E(2)(b) which provides that a person is a member of a couple if:

   “all of the following conditions are met:

   (i)the person is living with a person of the opposite sex (in this paragraph called  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 s 11A), in a marriage-like relationship;

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

5. Living with is qualified by s 5E(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…