Kuhn and Repatriation Commission (Veterans' entitlements)
[2022] AATA 2151
•5 July 2022
Kuhn and Repatriation Commission (Veterans' entitlements) [2022] AATA 2151 (5 July 2022)
AppID: Kuhn and Repatriation Commission
MatterType: Veterans’ entitlements
Division:GENERAL DIVISION
File Number: 2020/3297
Re:Glenda Kuhn
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:5 July 2022
Place:Brisbane
The Tribunal finds that the Applicant did not enter into a de facto relationship after the death of the Veteran, and is not precluded by the operation of s 13(8) of the Veterans’ Entitlement Act 1986 (Cth) from seeking a review of the reviewable decision.
.................SGD.......................................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS — war widow’s pension — eligibility — whether Applicant is a dependant — whether Applicant entered into a de facto relationship after Veteran’s death — Applicant did not enter into a de facto relationship after death of Veteran
LEGISLATION
Social Security Act 1991 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
War Pensions Act 1914 (Cth)
CASES
Alirezai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 655
Bruce and Secretary, Department of Social Security (1995) 39 ALD 473
Dietman and Repatriation Commission [2019] AATA 4428
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Reid and Secretary, Department of Social Security [1995] AATA 304
Secretary, Department of Social Security and Marshall [1991] AATA 91
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Ward and Secretary, Department of Social Security [1985] AATA 385
Zablotsky and Secretary, Department of Social Services [2020] AATA 374
REASONS FOR DECISION
Deputy President J Sosso
5 July 2022
INTRODUCTION
Ms Glenda Kuhn (the Applicant) applied to the Administrative Appeals Tribunal (the Tribunal) for a review of a decision of the Veterans’ Review Board (the Board) of 17 March 2020, which affirmed an earlier decision of the Repatriation Commission (the Commission) of 3 September 2019, that the death of Mr Anthony Kuhn (the Veteran) was not war-caused, and that accordingly, the Applicant was not eligible for be paid the war widow’s pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act).
The Veteran served in the Royal Australian Air Force from 15 April 1966 to 2 April 1971 and rendered operational service in Vietnam between 20 April 1968 until 16 April 1969 – Exhibit 11 ST01 214 – 215.
The Applicant married the Veteran on 12 December 1970.
On 17 April 1988, the Veteran was killed in a fatal aeroplane accident in Brisbane. Two other persons were also killed in the accident.
The Applicant lodged a claim for the war widow’s pension on 9 August 2019.
A Hearing to determine the claim was convened in Brisbane on 11 May 2022. The Applicant appeared and gave testimony. During cross-examination by Ms Kate Slack of Counsel, appearing on behalf of the Commission, questions were asked about the Applicant’s relationship with men following the death of the Veteran.
When questioned about the relevance of this line of questioning, Ms Slack drew the Tribunal’s attention to s 13(8) of the Act, which relevantly provides:
“(8) Where a dependant of a deceased veteran (not being a reinstated pensioner or a child of the veteran) re‑marries, marries or enters into a de facto relationship after the death of the veteran and after the commencement of this Act:
(a) the Commonwealth is not liable to pay a pension to the dependant under this section…”
It would appear that a policy has been in place since 1914 that a war widow’s pension is cancelled upon the widow remarrying. This was first enacted in the War Pensions Act 1914 (Cth) and continues to apply under the Act. Special provisions apply for persons eligible to receive a pension on or before 28 May 1984 – s 13AG. These provisions do not apply in this matter.
It is also the case that, as a general rule, if a pensioner remarries or enters into a de facto relationship, but then subsequently divorces or dissolves the de facto relationship, an entitlement to claim the war widow’s pension does not revive.
It is not the task of this Tribunal to consider the merits of the policy underpinning these provisions, although it should be noted that they have the potential to cause harsh consequences in some cases. All that needs be noted here, is that the question to be resolved by this Tribunal is whether the Applicant, following the death of the Veteran, entered into a de facto relationship with another person. If the answer to that question is in the affirmative, then the Tribunal has no jurisdiction to proceed with the substantive application for the war widow’s pension as the Applicant would not be eligible to claim it.
FACTUAL BACKGROUND
The Tribunal was provided with a detailed statement of the Applicant dated 27 May 2022 – Exhibit 17 pp. 1 – 15.
In the Statement, the Applicant outlines, at length, her personal life following the death of the Veteran.
The Applicant and Veteran had three children: at the time of the Veteran’s death, Marc was aged 16, Janine 12, and Karl 7 – Exhibit 17 p. 1 para 3.
The family was deeply traumatised by the Veteran’s sudden death, but received no counselling. Marc, subsequently, had problems with drugs, and the other two children exhibited some antisocial behaviour – Exhibit 17 p. 2 paras 5 – 7.
Following the death of the Veteran, the Applicant purchased a house in Springwood – Exhibit 17 p. 2 para 8.
Also, following the Veteran’s death, the Applicant was unemployed for almost twelve months but subsequently completed a course at the Sarina Russo Institute and gained employment with the Queensland Public Service – Exhibit 17 p. 3 para 12.
After gaining employment with the Queensland Public Service, the Applicant met all of her children’s financial needs, repaid the mortgage on her home and paid for all other outgoings. She did not receive financial assistance from any other source – Exhibit 17 p. 3 para 13.
The Applicant’s only assets at that time were her home, household contents and a motor vehicle. She did not have any savings of significance and the family lived a frugal life – Exhibit 17 p. 4 para 14.
Around 1990 – 1991, the Applicant met a man, KB, socially. She formed a friendship with KB and would go out dancing from time to time. This friendship continued for approximately six or seven years. The Applicant testified that it was “a very casual friendship because I never used to see him all the time” – Exhibit 17 p. 2 para 9; Transcript (Tr.) 15.6.2022 p. 8.
During this period, the Applicant did go out with other men, though not frequently. Further, the Applicant surmised that KB went out with other women. KB “made it clear to me that he was not looking for a committed relationship” – Exhibit 17 p. 3 para 10.
KB lived at Coorparoo with his two children, Caroline and Craig who, in 1990 – 1991, were aged 9 and 8 years. KB shared joint custody with his ex-wife who he had divorced – Exhibit 17 p. 3 para 11.
The Applicant was unaware of KB’s financial circumstances. She did not know whether he owned his Coorparoo home and, although she knew he had a video machine business, she had no knowledge of the details of the business or the earnings he made. According to the Applicant, KB “never discussed any of his financial affairs with me” – Exhibit 17 p. 4 paras 15 – 16.
During the first six to seven years of the Applicant’s relationship with KB, there were approximately four occasions when they stopped seeing each other for lengthy periods of time. The Applicant stated that they were both busy and committed to their respective families and their “relationship always took second place to the needs” of their families – Exhibit 17 p. 5 para 21.
The last break in the relationship at that time was the longest and lasted for some months. KB made contact with the Applicant and told her that Craig wanted to meet with Karl. KB also raised the idea of them living together, and told the Applicant that his grandmother had told him that he was crazy to let her go and that his grandmother had described her as a “lovely lady” – Exhibit 17 p. 6 para 24.
The Applicant agreed to live in KB’s Coorparoo house together with Karl, who was then around 15 years of age – Exhibit 17 p. 6 para 25.
The Applicant’s eldest son, Marc, by this time, had left home, obtained work, and had a child with his partner, Catherine. Marc, Catherine, and their baby lived with the Applicant in her Springwood home for twelve months and subsequently moved into a flat together. Their life was difficult as Marc was still addicted to drugs and was suicidal. The Applicant stated – Exhibit 17 p. 7 para 27:
“…I was deeply concerned for his emotional health. My decision to move in with [KB] was really a pragmatic solution as it allowed Marc and Catherine to live in my Springwood home. My thoughts were that providing Marc and Catherine with my Springwood home would give them an opportunity to be a family and to have much-needed stability but I would always be able to move back there if I decided I did not want to live with [KB] or the relationship ceased.”
Also, at this time, Janine had left home and was living with her future husband – Exhibit 17 p. 7 para 28.
KB and the Applicant occupied the main bedroom and maintained a sexual relationship – Exhibit 17 p. 7 para 30.
During this time, the Applicant did not go out with other men, but she testified that KB was “interested in other females” – Tr. 15.6.2022 p. 10. The Applicant stated that KB never committed to an exclusive relationship with her, and Caroline told her that KB had a female friend who he used to visit when the Applicant was away – Exhibit 17 p. 10 para 40.
According to the Applicant, she and KB never formally agreed on the financial and non-financial arrangements for their cohabitation. She continued to work and paid the mortgage and some of the outgoings of her Springwood home. The financial contribution by Marc and Catherine was basically limited to electricity bills, which they regularly fell behind with. The Applicant paid for her and Karl’s personal expenses, including the food they consumed. KB and the Applicant shopped separately – Exhibit 17 p. 8 paras 31 – 33.
Conversely, KB paid for all of his and his children’s personal expenses, as well as all outgoings on the Coorparoo property. He never asked the Applicant for any contributions for those expenses – Exhibit 17 p. 8 para 34.
When the Applicant and KB went on holidays together, they each paid for their share of food and other expenses – Exhibit 17 p. 9 para 36.
The only occasion the Applicant and KB purchased something together was early in the period of cohabitation when they each paid half for a larger car to accommodate their respective children – Exhibit 17 p. 13 para 56 – 57.
During the period that the Applicant lived with KB, there were two periods of separation. Problems arose because Craig suffered from mental health issues and was aggressive towards the Applicant and Karl. After the Applicant rebuked Craig for his behaviour, KB said to Craig that the Applicant “is moving out”; which she did – Exhibit 17 pp. 10 – 11 paras 42 – 44.
The Applicant and KB were apart for 6 – 8 weeks. Karl remained at the Coorparoo home, and the Applicant lived first at her Springwood home, and then with Janine at Camp Hill. She returned to Coorparoo because she could not afford rental accommodation and living with her daughter involved her sleeping on a mattress in the lounge room. Her decision to return to Coorparoo “was made for practical reasons solely and not because of any emotional reconciliation between [KB] and myself – Exhibit 17 p. 11 para 45.
The second, and final, separation involved a woman, WL, who was known as “Julie”. Julie was employed by KB, but the Applicant noticed that KB was starting to show signs of physical affection for her. Eventually, the Applicant discovered the true identity of “Julie”. She was, in fact, WL, a woman who had been convicted, with two men, of the murder of her husband. She was known in the press as the “Black Widow” and would sometimes cook dinners for the Applicant and KB. When the Applicant discovered who Julie was, she confronted KB who confirmed her identity. After this, the Applicant left the Coorparoo home and never returned – Exhibit 17 p. 12 paras 49 – 55.
Following her departure from KB’s home, the Applicant testified that she never went out with him again or visited him – Tr. 15.6.2022 p. 21.
THE HEARING
A Hearing was convened in Brisbane on 15 June 2022.
The Applicant appeared via Microsoft Teams, gave evidence, and was cross-examined.
The Applicant was represented by Mr Anthony Harding of Counsel who was instructed by Mr Terence O’Connor.
The Commission was represented by Mr Andrew Dillon of Counsel and instructed by Ms Madeleine King.
THE LAW
Section 13 of the Act sets out the general principles for eligibility to obtain a pension. As previously explained, s 13(8) provides that where a dependant of a deceased veteran re-marries, marries or enters into a de facto relationship after the death of the veteran, the Commonwealth is not liable to pay a pension to the dependant.
In this matter, the Commission contends that the Applicant and KB were in a de facto relationship after she moved into his Coorparoo home.
Mr Dillon made the following submissions – Tr. 15.6.2022 pp. 32 – 33:
“…it appears that there were effectively two relationships. The first being the six and seven year friendship that started in the period shortly after Mrs Kuhn's husband tragically died.
And that went on for six or seven years and we would say that during that period, there wasn’t a de-facto relationship. There was merely a friendship. And so things that might go to indicate a de-facto relationship should not be looked for during that early period, such as emotional commitment, emotional support about the death of the applicant's husband.
But then there’s a period of cohabitation which is six to seven years again. And it’s there that we need to look at the section 11A indicia and also to the meaning that the evidence throws up about the relationship. So effectively we’re saying that there was a relationship of – for then 14 years, six or seven of which were in cohabitation.”
The Tribunal accepts the correctness of Mr Dillon’s concession that in the six or seven years prior to the Applicant moving into KB’s Coorparoo home, that she and KB were not in a de facto relationship. The Tribunal’s inquiry, then, is limited to the time that the Applicant lived with KB in his Coorparoo home.
As Mr Dillon pointed out, the Tribunal’s inquiry is guided by the statutory indicia in s 11A of the Act. That section provides that, for the purpose of the Act, when determining whether two people are living together in a de facto relationship, regard is to be had to all the circumstances of the relationship, including matters set out in paragraphs (a) – (e). There is no dispute that, for five or six years, the Applicant was living together with KB in his Coorparoo home. The only issue in contention was whether the cohabitation amounted to a de facto relationship. Paragraphs (a) – (e) are set out below:
“(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 being in a de facto relationship with 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 their relationship as a de facto relationship.”
Subsection 4(3) of the Social Security Act 1991 (Cth) is drafted in almost identical terms, and the jurisprudence on this (and related comparable) provision is of assistance when properly applying s 11A.
The Tribunal’s attention was drawn by both Mr Dillon and Mr Harding to a number of Federal Court decisions and Tribunal determinations.
First, Counsel made reference to the judgment of O’Loughlin J in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 (Staunton-Smith).
In that case, Mrs Staunton-Smith had three children from her first marriage, including a young child requiring full care and attention. Mrs Staunton-Smith’s second marriage to Mr Staunton-Smith only lasted eight months and they then separated. Eight years later, Mrs Staunton-Smith returned to live in Mr Staunton-Smith’s house as a matter of convenience, and because Mr Staunton-Smith assisted in caring for the disabled child. The evidence disclosed that there was no sexual relationship between the parties, and they went out together only occasionally. They would often sit and watch television together at night. Mrs Staunton-Smith made no substantial contribution towards household expenses, and they jointly owned a boat and a car.
His Honour, first, dealt with the fact that the parties were sharing accommodation and one was financially dependent on the other, and he observed (at 173):
“I am of the opinion that it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship. For example, in arriving at its decision, the Tribunal regarded it as a matter of significance that there was a supportive relationship existing between Mr and Mrs Staunton-Smith. I agree that normally that would be an indicator pointing to the conclusion that the parties were not living separately and apart. But in the particular circumstances of this case, did the Tribunal accept the evidence of both Mr and Mrs Staunton-Smith that during the period of their separation, he would, on occasions, stay at her home and care for her and her children when she was sick or in hospital?...”
Later, his Honour made the following observation (at 175):
“…the composition of the marital relationship for each couple varies from case to case. This accords with the views that this Court and the Tribunal have expressed when considering various provisions of the Social Security Act: in every case it will be necessary to have regard to the particular circumstances of the people whose lives and lifestyles will be affected by the decision of the Department; it is wholly inappropriate to fall back on standards, conventions or ‘role-models’.”
His Honour then set out the various factors that required consideration and the error that the Tribunal had fallen into (at 176 – 177):
“Putting to one side the failure to address the question of living separately and apart, the Tribunal’s decision, as stated in par 22 of its reasons, was that ‘the applicant and Mr Staunton-Smith are residing under the same roof on a bona fide domestic basis’. The findings on material questions of fact that the Tribunal made in coming to that decision were:
(1) the totality of the relationship;
(2) the existence of a domestic relationship which was initiated by the applicant;
(3) the applicant’s desperate need of shelter and assistance in caring for her son;
(4) the supportive nature of the relationship ‘based on some financial, domestic and interpersonal co-operation’;
(5) the parties’ commitment to each other;
(6) the comfort and support derived by the applicant from living under the same roof as Mr Staunton-Smith to whom she is still legally married;
(7) neither party having a strong desire to end their ‘current situation’ and ‘their lifestyle’ being ‘similar to that of man and wife’; and
(8) their strong and mutual concern for Phillip.
Each of those matters was a proper subject or facet of the relationship to be taken into account as part of the total picture. Furthermore, there was evidence before the Tribunal, most, if not all, of which was referred to, that permitted it to make each such finding. Thus it could not be said that the Tribunal was manifestly unreasonable because of it taking into account matters that were wholly irrelevant. The problem lies in the opposite direction. Did the Tribunal have any, and if so what, regard to the following claims:
(1) That there was no sexual relationship;
(2) That there was virtually no social relationship;
(3) That the parties did not hold themselves out as being married;
(4) That the parties did not regard themselves as man and wife;
(5) That the applicant’s financial dependence on Mr Staunton-Smith was not a voluntary relationship borne out of love, friendship or concern; it resulted directly from the withdrawal by the Department of her social welfare benefits;
(6) That his willingness to care for her did not occur solely as a result of their living under the same roof as from March 1989 — there was evidence of similar conduct prior to that date when they were living separately and apart?”
Counsel also referred the Tribunal to the decision of French J (as he then was) in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 (Pelka).
Ms Pelka received carer payments between July 2000 and March 2003 at the single person rate. The Department of Family and Community Services subsequently determined that, during that time, she had been living in a marriage-like relationship with Mr Kuhl, with whom she shared her apartment.
Ms Pelka had separated from her husband in 1986, and finally divorced him in 2003. In 1985, she met Mr Kuhl, and in accordance with Chinese culture, they became god-brother and god-sister.
In 1988, Ms Pelka purchased a two bedroom apartment and Mr Kuhl house-sat it whilst she travelled overseas for an extended holiday. On her return, Mr Kuhl remained in the apartment, as he had nowhere else to go, until 2004, and resided in a spare room. In exchange for paying no rent, Mr Kuhl would pay the cost of Ms Pelka’s airfares and accommodation when she travelled overseas. During this time, Ms Pelka paid off the mortgage on her apartment, whilst Mr Kuhl paid for the telephone, electricity and gas bills.
Ms Pelka stated that she did not have a sexual relationship with Mr Kuhl, they did their own washing, and she provided food for him when she cooked more than she needed.
Ms Pelka and Mr Kuhl travelled overseas approximately once per year and booked a twin share hotel apartment in order to save money. Ms Pelka paid for her own shopping trips.
Ms Pelka and Mr Kuhl did not have joint bank accounts and would occasionally go to the movies. Ms Pelka did not tell her friends she was in a relationship with Mr Kuhl. They lived separate lives and days would go by without seeing each other. Ms Pelka took no notice of Mr Kuhl’s private life, and it was a matter of convenience that they lived in the same apartment.
Ms Pelka stated that she did not pool resources with Mr Kuhl, except when they were on holidays, and she did not know she was the beneficiary of his Will, superannuation and life insurance policies.
Mr Kuhl said the relationship was “separate and apart”, that he did not tell Ms Pelka what he was doing and would often stay away with lady friends. He agreed that he had never had sex with Ms Pelka and did his own cleaning.
Ms Pelka had cared for Mr Whittaker since 2000, and had been away with him on a number of business trips, including a three month trip around Australia. When Ms Pelka moved into the house of Mr Whittaker, she cared for him and received carer payments. In the three years (2000 – 2003) she received the carer payments, she did so at the rate of a single person.
In 2003, the Department decided that she had, in fact, been living in a marriage-like relationship with Mr Kuhl since, at least, 2000.
Of significance in this matter was the consideration of what appears in s 11A(a)(ii), namely, the pooling of financial resources.
French J gave general guidance on the correct approach to resolving the questions posed by s 11A – (at [46]):
“Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
(1) Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
(2) Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people; and
(e) the nature of the people's commitment to each other.
(3) In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
(4) Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
(5) Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements; or
(e) mutual commitment.”
French J went on to decide (at [51]) that the matters set out in s 4(3)(a), which is the equivalent of s 11A(a), were not exhaustive of the financial aspects of a relationship which can be taken into account. It logically follows from this that the same finding can be made about s 11A(b), the nature of the household, s 11A(c), the social aspects of the relationship and s 11A(e), the nature of the people’s commitment to each other. In short, the matters outlined in s 11A provide specific guidance for a decision-maker to factor into a decision whether there exists a de-facto relationship, but those matters, though providing specific guidance, are not exhaustive of the matters that a decision-maker can, and should, take into account depending on the factual matrix in a particular case.
French J then went on to determine what constituted “pooling” for the purposes of s 11A(a)(ii) (at [52]):
“…It plainly involves something more than financial cooperation or separate contributions to different elements of household expense. The so-called ‘barter system’ did not constitute a pooling of financial resources in that sense. If Mr Kuhl paid for or contributed to overseas travel for Ms Pelka instead of paying rent, that is not a ‘pooling of financial resources’ any more than his payment of rent would be so described.”
His Honour then went on to deal with some of the household considerations (at [54]):
“The Tribunal’s findings on the nature of the household arrangements between Ms Pelka and Mr Kuhl can be measured against the non-exhaustive matters identified in s 4(3)(b). That is to say:
(1) There was no question of any joint responsibility for providing care or support of children.
(2) The living arrangements involved separate bedrooms and a common kitchen, lounge and bathroom. Ms Pelka and Mr Kuhl each owned their own bedroom furniture and Mr Kuhl supplied most of the lounge room furniture.
(3) Ms Pelka did more housework than Mr Kuhl and they occasionally ate together when she cooked more than she needed for herself.
These findings were not disputed. It was submitted however, on behalf of Ms Pelka, that they were not consistent with a ‘marriage-like relationship’ and did not support the Tribunal's overall conclusion. I agree with that proposition…”
With respect to the Tribunal’s task in weighing the evidence, Counsel referred to the following statement of law in Dietman and Repatriation Commission [2019] AATA 4428 (Dietman) at [129]:
“In reaching a conclusion as to whether two people are living together in a de facto relationship a decision-maker has to consider, inter alia, the matters outlined in s 11A. Those matters have been discussed earlier. However, there is an important ingredient that must be factored into the weighing exercise in each and every instance. A decision-maker is not just dealing with indicia per se, but also the subjective reality of human beings. Just as the presence or absence of a sexual relationship is not determinative of the existence (or lack thereof) of a de facto relationship, the empathetic relations between the relevant parties and how that empathy is manifested in goods and deeds is often of critical importance. So too is how the parties perceive themselves and each other. In short, in engaging in a weighing exercise, a decision-maker is faced with the difficult task of attempting to glean the true nature of the emotional relationship between two persons and how this is manifested in reality, both in terms of the parties themselves and the wider world.”
CONSIDERATION
Introduction
In this matter, the task of the Tribunal is a relatively narrow, but focused, inquiry. It is to determine if the Applicant and KB were in a de facto relationship during the time that they resided at the same house in Coorparoo. In reaching a decision on this question, the Tribunal will need to focus on the indicia contained in s 11A.
(a) The financial aspects of the relationship
(i) Joint ownership of assets and joint liabilities
There is no evidence before the Tribunal that the Applicant and KB jointly owned any real estate or any other major assets other than a car they had jointly purchased to accommodate their respective children – Exhibit 17 p. 13 paras 56, 59; Tr. 15.6.2022 p. 33
(ii) Significant pooling of financial resources
It will be noted that the decision-maker’s attention is drawn to a significant pooling of financial resources. The fact that there may be some minor intermingling does not meet the requirement of significant pooling.
What constitutes pooling was explained by French J in Pelka at [52] as quoted above. As his Honour pointed out, pooling requires more than financial cooperation or separate contributions to different elements of household expenses.
Mr Dillon submitted that there was a pooling of resources insofar as the Applicant lived in KB’s home rent free for six or seven years. It was also submitted that, as the Applicant was not required to contribute to the outgoings of the Coorparoo property, this constituted a significant subsidy and allowed her to spend her salary as she chose – Tr. 15.6.2002 p. 34.
The Tribunal does not accept this arrangement constituted pooling. As French J explained, financial cooperation per se does not amount to pooling. The evidence before the Tribunal suggests that, from a financial point of view, the Applicant and KB operated independently and separately. It was not even as if there was a barter system in place, which, as French J explained, does not constitute pooling. It would appear that the Applicant and KB, over time and by osmosis, developed a financial relationship which could be characterised as separate and independent. As the Applicant explained, she and KB never sat down and agreed on the financial arrangements for their cohabitation. They “just did things when they needed to be done” – Exhibit 17 p. 8 para 31.
The Applicant, in her statement and during her testimony, alluded to KB’s divorce and his reluctance to financially commit to any other person. The Applicant stated – Exhibit 17 p. 6 para 24:
“It was still obvious to me that [KB] had been deeply hurt by the breakup of his first marriage and he was very reluctant to re-experience that trauma.”
In his summing up, Mr Harding made the following submission – Tr. 15.6.2022 p. 28:
“As to significant pooling of financial resources, this really only comes down in my submission to a case where there was a degree – a limited degree of financial cooperation in the sense of you’re living here, Mrs Kuhn, I’ll do the cooking to contribute, effectively. But otherwise they were not intermingled or pooled in any way at all.”
The Tribunal agrees with this submission of Mr Harding. There is no evidence before the Tribunal that the Applicant and KB opened joint bank accounts, purchased property in joint names, other than the motor vehicle discussed above, shared their wages, or even, as in Pelka, had a collection box into which they would place money for holidays or other purposes. To all intents and purposes, the Applicant and KB strictly separated their financial affairs. Indeed, even when the Applicant was in financial strife, she did not ask KB for financial assistance and “he never offered it” – Exhibit 17 pp. 8 – 9 para 35.
The Tribunal finds that there was no significant pooling of financial resources by the Applicant and KB.
(iii) Any legal obligations owed by one person in respect of the other person
No evidence was presented that there were any legal obligations owed by the Applicant in respect of KB or vice versa.
The absence of any evidence in this regard was conceded by Mr Dillon – Tr. 15.6.2022 p. 34.
Tellingly, the Applicant made the following statement – Exhibit 17 p. 14 para 63:
“When we separated finally, there was no need for any financial settlement because we had never intermingled our finances. Neither of us gave any thought whatsoever to a claim on each other’s property.”
The Applicant also stated that there were no mutual wills favouring each other, nor did either party grant to the other an ordinary or enduring power of attorney – Exhibit 17 p. 14 para 64.
The Tribunal finds that there were no legal obligations owed by Applicant in respect of KB or vice versa.
(iv) Sharing of day-to-day household expenses
The evidence before the Tribunal suggests that there was no sharing of day-to-day household expenses.
According to the Applicant, KB paid for all the outgoings for the Coorparoo residence, including rates and electricity. KB never asked the Applicant for any financial contributions. Conversely, the Applicant paid for all of her personal expenses, including the food that she and Karl ate, while KB purchased the groceries for his family. The Applicant and KB shopped separately, and often purchased the same food items but did not share them. The only contribution the Applicant made was the cooking of meals for all members of the household.
The Applicant stated that this “was a very unusual situation; very informal and very casual” – Exhibit 17 p. 8 para 33.
The Tribunal finds that there was no sharing of day-to-day household expenses.
(b) The nature of the household
(i) Joint responsibility for the care of the children
There is no evidence that there was any joint responsibility for providing the care and support of each other’s children.
First, the Applicant’s eldest son, Marc, was, by the time the Applicant moved into KB’s Coorparoo home, an adult who had left home, was in a relationship and was the father of a child. There is no evidence before the Tribunal as to his relationship with KB, and also, there is no evidence of any care or support that KB offered Marc or his family.
Second, the Applicant’s daughter, Janine, had also left home and was a wife and mother. Of significance, when Janine was married, the Applicant paid for the wedding reception and, at no time, did KB offer to contribute to the cost of the wedding. The Applicant stated – Exhibit 17 p. 9 para 37:
“…At no time did [KB] ever offer to contribute towards the costs of Janine’s wedding even though he knew that I was paying for it. He never offered and I never asked. Indeed, given the nature of our relationship, it did not occur to me to ask. It was a stretch financially but I regarded it as my obligation as Janine’s mother. [KB] came to the wedding. It took me quite some time to save up for the wedding.”
Third, there is Karl, who was of a similar age KB’s son, Craig. The Applicant made this statement with respect to Karl – Exhibit 17 p. 14 para 65:
“[KB] never provided emotional support for Karl and certainly no financial support. He never acted as a father figure in any manner towards Karl well knowing that Karl’s father was deceased.”
KB also provided no financial support for Karl’s schooling, even though the Applicant was in financial difficulties – Exhibit 17 p. 8 – 9 para 35:
“…Karl was attending Seaton [sic] College at Mount Gravatt at the time, and I was paying the school fees from my own resources. He later attended St James College. I was also paying for uniforms and school excursions and all other expenses associated with educating children. However, I never asked for financial assistance from [KB] and he never offered it. He would have been aware of my financial obligations including Karl[‘s] school fees.”
Mr Harding made the following submissions – Tr. 15.6.2022 p. 29:
“[KB] responsible for his children, Mrs Kuhn was responsible for her children. In that regard, she didn’t even encroach into responsibility to such an extent that she was invited to any school events for [KB’s] children which is telling in my respectful submission.
She couldn’t chastise or discipline [KB’s] son, Craig. [KB] was incredibly defensive and supportive of Craig, notwithstanding incidents where his actions caused distress to Mrs Kuhn and also the risk of physical violence and concern for her wellbeing…”
There is considerable force in Mr Harding’s submissions. KB had joint custody of his children and they shared time between him and his ex-wife – Exhibit 17 p. 3 para 11. As Mr Harding submitted, the Applicant had a tense relationship with Craig, and when she remonstrated him, she was, in effect, evicted from the Coorparoo home by KB – Exhibit 17 pp. 10 – 11 para 44.
There is no evidence that the Applicant was invited to any of the school or social events of KB’s children, and the only meaningful engagement the Applicant appears to have had with them was cooking their meals. Indeed, there is a dearth of evidence before the Tribunal about how KB’s children interacted with the Applicant, other than the seemingly violent outbursts by Craig towards both the Applicant and Karl.
Mr Dillon pointed out that, when the Applicant left the Coorparoo home after the Craig incident, Karl remained in the home. Mr Dillon submitted that Karl was comfortable living with KB and considered the Coorparoo house to be his home. Further, Mr Dillon submitted that allowing Karl to live in the home without paying rent for five years constituted support – Tr. 15.6.2022 p. 35.
However, the Applicant provided the following explanation of why Karl stayed with KB – Exhibit 17 p. 11 para 45:
“I moved back to my Springwood house. Karl stayed at [KB’s] house because there was nowhere for him at Springwood. It was very awkward given that Marc and Catherine were still living there with their children. With all of us living there, it was very cramped…”
It is tolerably clear to the Tribunal that KB provided minimal care or support for any of the Applicant’s children. There appears to be little interaction, let alone support, with the two eldest children, and, so far as Karl was concerned, the only “support” given was allowing him to live with his mother in the Coorparoo home. In short, the “support” that KB gave was wholly dependent on the Applicant living with him. As explained above, the Applicant purchased the food and clothes for Karl as well as his schooling and other life expenses. There is little material before the Tribunal to suggest that KB played any sort of parenting or nurturing role for Karl.
Also, as explained previously, the Applicant’s interaction with KB’s children appears to have been somewhat cursory. Notwithstanding that, at times, they appeared to be a “family” of five in the Coorparoo home, the relations between KB and Karl and the Applicant with Caroline and Craig were not particularly close and did not involve giving any significant care or support.
(ii) The living arrangements of the people
The uncontested evidence is that the Applicant and KB lived together for a number of years.
As previously discussed, they did not pool their financial resources and, when it came to sharing work responsibilities, the Applicant testified that she did work inside the house and KB did work outside of the house – Tr. 15.6.2022 p. 11:
“Now, you say that there was no agreement as to how the household would run. At paragraph 31 you have just say, ‘We just did things as they needed to be done.’ Is that right?---Correct. Yes.
So whatever you or [KB] saw needed to be done, you just did it?---Well I just did the cooking and housework. And he did other stuff.
What sort of other stuff?---Well he did the outside. The lawns and, you know, that stuff. And general whatever that had to be done. And looking after his own children and I looked after Carl.
Sure. So you did most of the cooking. Did you usually have dinner together?---Yes, because I used to cook for everyone.
So it would be often you and [KB] and three children?---Yes.
And so you say you did most of the housework. Did you launder [KB] clothes and his children’s clothes?---No, definitely. Not one item.”
It is also not disputed that throughout the time the Applicant lived with KB, they shared a bedroom and had a sexual relationship. Mr Dillon made the following submission – Tr. 15.6.2022 pp. 35 – 36:
“A merely convenient relationship could have involved her sleeping in a separate bedroom. But, she shared a bedroom and a bed with [KB] for at least six years. And while the case law makes it clear that the existence of a sexual relationship is not determinative of the existence of a de-fact relationship, we say that it being sustained for at least six years is highly indicative of there being a de-facto relationship.
It really indicates that this was not just a house sharing arrangement, but a long-term intimate relationship, at least physically if it couldn’t be called intimate emotionally. And of course, it’s important that [KB] provided a bedroom for the applicant’s son, you know, for this period and as I’ve noted, Carl [sic] stayed there when his mother moved out.”
There is considerable force in Mr Dillon’s submission. Although the Applicant and KB had an extremely unusual relationship, there is no question that, from the time she moved into the Coorparoo home, the Applicant and KB had a sexual relationship. As Mr Dillon rightly points out, this was not for a short period of time, but lasted at least five or six years. This aspect of the relationship is discussed further below, but suffice to say, the living arrangements of the Applicant and KB point, on the balance, towards the existence of a de facto relationship.
(iii) The basis on which housework is distributed
As previously explained, the Applicant was responsible for indoor housework, while KB did the outdoor housework. One exception to this was the washing, with the Applicant only doing the laundering for herself and Karl.
Mr Dillon submitted that this amounted to a traditional separation of housework amongst couples, that the Applicant and KB felt responsible for the running of the house, and it was a joint arrangement. Mr Dillon also pointed to the fact that the Applicant cooked for all members of the household and that they ate their meals together. Again, he submitted that this showed a degree of interconnection that was consistent with a marriage-like relationship – Tr. 15.6.2022 p. 36.
Mr Dillon’s characterisation of the respective housework roles played by the Applicant and KB has some force, and this factor also points to the existence of a de facto relationship.
(c) The social aspects of the relationship
(i) Whether the Applicant and KB held themselves out as being in a de facto relationship with each other
There is little evidence before the Tribunal about how the Applicant and KB held themselves out to the world as a couple.
Mr Dillon quite properly made the following concession – Tr. 15.6.2022 p. 36:
“…I think we can take Ms Kuhn’s word for it but she didn’t hold herself out as a member of a couple.”
The Tribunal proceeds on the basis that neither the Applicant nor KB held themselves out as being in a de facto relationship. This is also consistent with the Applicant’s statement that KB made it clear from the outset that he did not want a committed relationship and also made it clear that he had no intention of committing to another permanent relationship – Exhibit 17 p. 3 para 10, p. 5 para 19. The fact that there were no mutual wills or integration of financial matters, is also indicative of KB’s desire to remain independent of the Applicant. If KB was in a de facto relationship, and held himself out to the world as being in such a relationship, then there would have been potential legal ramifications if that relationship broke down. This may have been a matter which exercised KB’s mind having regard to his acrimonious divorce.
(ii) Assessment of friends and regular associates of the nature of their relationship
The Applicant gave the following account of the social life she had with KB – Exhibit 17 p. 14 para 66:
“[KB] and I would go out socially mainly because of our mutual interest in rock ‘n’ roll dancing. I cannot say how we were perceived by others on such occasions. We never discussed our private affairs with other people.”
Apart from dancing, it would appear that the Applicant and KB had little social life together. The Applicant stated that they “didn’t really socialise – occasionally we might have.” In addition, although she had friends from business college, she met with them separately from KB. In turn, KB “didn’t have many friends” and only one of his friends used to come around for dinner – Tr. 15.6.2022 p. 12.
The Applicant and KB went on holidays on one occasion to New Zealand and, near the end of their relationship, to South America. Occasionally, they would go to the movies with their respective children – Tr. 15.6.2022 pp. 12 – 13.
The Tribunal agrees with Mr Harding’s submission that, on the basis of the meagre evidence before the Tribunal, there is no evidence to support a finding that friends and regular associates would make an assessment that the Applicant and KB were in a de facto relationship – Tr. 15.6.2022 pp. 29 – 30.
(iii) Joint social activities
As already explained, the Applicant and KB did not have a vibrant social life. Apart from their shared love for rock n’ roll dancing, it would appear that they went on a few holidays together and occasionally went to the movies. KB had few friends, and those adult friends of the Applicant were kept separate from KB.
In short, the evidence suggests that the Applicant and KB did not engage in significant joint social activities.
(d) Any sexual relationship between the people
It is not contested that, during the time the Applicant resided with KB at his Coorparoo home, they were in a sexual relationship.
The existence of sexual relations between the parties is an important indicia of whether those persons are in a de facto relationship, but it is not, of itself, determinative.
A sexual relationship can be non-consensual – Bruce and Secretary, Department of Social Security (1995) 39 ALD 473. Further, if parties to engage in consensual sexual relations, but it could not be characterised of a loving or caring nature, then in some circumstances, it may not be indicative of a bona fide de facto relationship – Reid and Secretary, Department of Social Security [1995] AATA 304. The fact that two people share the same premises and engage in sexual relations may not be indicative of a de facto relationship where the reason for living together is purely economic and sexual relations are opportunistic – Alirezai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 655.
Nonetheless, in most instances where persons live under the same roof, share the same bed and regularly engage in consensual sexual relations over an extended period of time, there would be a presumption that they are in a de facto relationship – see Ward and Secretary, Department of Social Security [1985] AATA 385.
Nonetheless, to paraphrase O’Loughlin J in Staunton-Smith, it is not sufficient for a decision-maker to find that parties are in a sexual relationship without delving deeper to find the reasons for that arrangement.
In this regard, reference can be made to Secretary, Department of Social Security and Marshall [1991] AATA 91.
The applicant in this matter allowed Mr Culbert to reside with her and share a bedroom with him. They engaged in sexual relations over a period of time. The Tribunal found that they were not in a de facto relationship. The following reasons were given:
“17. There was during the relevant period an admitted spasmodic sexual relationship between the respondent and Culbert, but it was not considered by either of them to have been of a loving or permanent nature. It was certainly not an exclusive relationship. Mrs Marshall herself described it as being no more than a relationship which satisfied the physical needs and demands of two mature adults. Mr Culbert said ‘the sexual relationship has been little more than a necessary outlet for me and I think Judith looked on it similarly’.
18. It is not however sufficient for the parties to a sexual relationship to describe it as simply physical in order to entitle an applicant for SPP to succeed. The whole of the surrounding circumstances must be looked at in depth in order that a judgment can be as to whether or not in fact there was existing at the relevant time a marriage like relationship.
19. Whilst the absence of any real evidence of anything more than a warm friendship was notable, it was the absence of many other common indicia of a marriage type relationship which persuaded me to find that the true nature of the relationship between these people was not of the kind required to enable them to be labelled as de facto spouses.
20. As I have said, there was no suggestion of permanence, no suggestion of exclusiveness. They did not rely on one another for mutual society and protection. There were no real indicia of a family unit. Mr Culbert had no affinity with the respondent's children. There was practically no social life of any significance and the parties did not present themselves to the outside world as married. Financially their arrangements were of the same kind as many adults sharing the same facilities in the same house.
21. In view of my findings as to the credibility of the principal witnesses. I do not find it necessary to examine the evidence any further in detail. Generally speaking although it was based on evidence which was not identical, I do not find myself in disagreement with any of the major conclusions of fact arrived at by the SSAT, with the exception that I did not find the respondent to be either irate or difficult to talk to.
22. Accordingly, the Tribunal finds that the respondent was not at the relevant time living as Mr Culbert’s de facto spouse and was therefore not a married person within the meaning of the Act. She is therefore a single person who satisfies the eligibility criteria set out in the Act and as such is entitled to receive her SPP for the relevant period.”
There are both similarities and differences between the facts of that determination and those before the Tribunal this matter. It is of relevance, however, because it provides an illustration of where parties are in a sexual relationship, but nonetheless, are not in a de facto relationship.
Suffice it to say, the fact that the Applicant and KB were in a sexual relationship for a prolonged period of time, points towards a de facto relationship.
(e) The nature of the people’s commitment to one another
(i) Length of the relationship
The Applicant and KB were friends for a period of six to seven years before they shared a house at Coorparoo, which arrangement then lasted for five or six years. In short, the Applicant and KB were in a relationship for a prolonged period of time.
(ii) Nature of companionship and emotional support provided to each other
The evidence before the Tribunal suggests that the relationship between the Applicant and KB was utilitarian, rather than emotional. Not knowing all of the background, it would appear odd to many that the Applicant remained with KB for the period that she did having regard to the distant and clinical way she was treated.
In her statement, the Applicant said – Exhibit 17 p.14 para 68:
“There was never any commitment towards each other especially from [KB]. Our relationship was approximately 5 years with 2 distinct separations. There was certainly companionship between [KB] and myself but it lacked emotional support during a period that I greatly needed emotional support.”
During the Hearing, I exchanged the following questions with the Applicant – Tr. 15.6.2022 pp 19 – 20:
“DEPUTY PRESIDENT: Thank you. So Mrs Kuhn, in the time that you were living… with [KB], did you regard yourself as his de facto partner?---No.
How did you regard him? In your heart of hearts, how did you regard him? Your partner? Your boyfriend? Your friend? What?---Probably just a companionship.
Apart from the fact that he appears to be… not a particularly generous human being, what did you find attractive about him? His love of rock'n'roll dancing or what?--- Yes, I used to enjoy rock’n’roll dancing… that was one thing I just really enjoyed that. That was my outlet of, you know, my enjoyment.
So that was the spark that got you together, rock’n’roll dancing, was it?---Yes.
And having been with him for such a long period of time – that is, as a friend and then having moved in for years, apart from the fact that you had difficulties moving back in your home, what kept you with him?---Well, I wanted to move out quite a few times I think but I just didn’t want to push Mark and Catherine out of my house at Springwood. So I sort of knew that it wasn’t working but I just – it just continued on really and I used to – we used to go rock’n’roll dancing. I used to love it.
…
Would you describe your relationship with him as a loving one?---Well, not really. Not if, you know, there was no commitment.
Did he give you any spark?---Any spark?
Yes. You know…je ne sais quoi… but when he walked in the room, did you immediately feel an emotional attachment to him?---No.
…
How would you describe him as a human being?---Selfish.”
There is a theme running through the evidence of the Applicant that she received neither financial nor emotional support from KB during the time that they knew each other. The Applicant made the following statement – Exhibit 17 p. 5 para 20:
“I was not looking for a permanent relationship; I was really looking for some emotional support. I couldn’t rely on my children for that support, it needed to come from an adult. I never received any emotional support from [KB]. He just wasn’t prepared to make the effort.”
The Tribunal agrees with Mr Dillon that it can be concluded that “for whatever reason, there was a compatibility. It may not have reached any great heights of passion but there was companionship” – Tr 15.6.2022 p. 38. It is also open to the Tribunal to conclude that, although there was a degree of companionship, there appears to have been an emotional distance in the relationship, with KB providing the Applicant with very little emotional support. To put it in another way, the relationship between the Applicant and KB was one of friends who provided mutual support, but not one of lovers who provided each other with the emotional support that would flow from that attachment. The following statement of the Applicant sums up the reality of the relationship – Exhibit 17 p. 5 para 22:
“We were not in love with each other in a romantic sense nor did we ever at any time develop a more mature love for each other. It was always a relationship of convenience. It met some of our needs but certainly not all of them and certainly not the need for unconditional love and long-term security.”
(iii) Whether people consider the relationship will continue indefinitely
It is tolerably clear that neither the Applicant nor KB believed that their relationship would continue indefinitely.
From the outset, according to the Applicant, KB “made it perfectly clear that he had no intention to commit to another permanent relationship” – Exhibit 17 p. 5 para 19.
In turn, the Applicant stated that she “was not looking for a permanent relationship” – Exhibit 17 p. 5 para 20.
When discussing the informal and ad hoc nature of the living arrangements at the Coorparoo home, the Applicant observed – Exhibit 17 p. 8 para 33:
“It was a very unusual situation; very informal and casual. It remained this way because neither of us, I believe, considered that it would last too long.”
This lack of long-term commitment manifested itself in KB going out with other women whilst still living with the Applicant at Coorparoo, and the Applicant observed – Exhibit 17 p. 9 para 39:
“There were plenty of times during our period of cohabitation when I would ask myself why I was wasting my time staying there. I knew [KB] would never commit to a long-term relationship.”
Indeed, the Applicant stated that, not only was there never any belief that she and KB would remain in an indefinite relationship, it “was just the opposite” – Exhibit 17 p. 15 para 69.
The Tribunal, therefore, finds that neither the Applicant nor KB considered that their relationship would continue indefinitely, and that this state of mind existed from the beginning of their relationship.
(iv) Whether the people see their relationship as a de-facto relationship
In addressing this indicia, Mr Dillon drew the Tribunal’s attention to observations made by Senior Member Puplick in Zablotsky and Secretary, Department of Social Services [2020] AATA 374 at [78]:
“Questions of whether or not individuals regard themselves as members of a couple are always going to be highly subjective, each person will have their own definition of ‘coupledom’ as it relates to their own lives. The Tribunal has recognised this subjectivity and takes it into account. However, it must primarily be concerned with what the objective facts establish and how those are to be interpreted.”
Two observations can be made about this statement of the law.
The first is that subparagraph 11A(e)(iv) focuses the decision-maker on the perception of the parties in question. The inquiry is not an objective one, but purely subjective. The question posed is how the parties “see their relationship”, as distinct from how an objective outsider would view it. Elsewhere in s 11A, reference is made to the perception of friends and regular associates – s11A(c)(ii), or to indicia that are, by their very nature, objective. Accordingly, when addressing this subparagraph, the Tribunal is required to attempt, from the evidence presented, to distill how the parties, from their subjective viewpoint, saw their relationship.
Second, irrespective of whether the parties viewed themselves in a de facto relationship or not, that viewpoint is not determinative of the question. A decision-maker, as Senior Member Puplick explained, has to weigh up all the objective and subjective evidence presented, and make a decision based on the totality of the evidence.
Turning now to the perceptions of the Applicant and KB, the Tribunal only has the benefit of the Applicant’s perspective. However, the evidence presented supports the following statement of the Applicant – Exhibit 17 p. 15 para 70:
“Finally, I do not believe [KB] or myself ever considered ourselves to being in a de facto relationship as that would have required some degree of commitment and permanency which was missing entirely from our relationship. [KB] always made it clear that he would not commit to a long-term relationship.”
When I asked the Applicant at the Hearing whether, when living with KB, she saw herself as his de facto partner, she emphatically answered in the negative and said the relationship just amounted to “companionship” – Tr. 15.6.2022 p. 19.
The Tribunal concludes that the evidence suggests that neither the Applicant nor KB saw themselves as being in a de facto relationship.
CONCLUSION
As I pointed out in Dietman (at [129]) a decision-maker is faced with the difficult task of evaluating all of the evidence and coming to a conclusion of the true nature of the relationship between two people, both in terms of how they perceived their relationship, and also how, objectively, it was and is viewed by the wider world.
Also, as the various Federal Court authorities have pointed out, the Tribunal’s task is not just to mechanistically go through the various indicia set out in s 11A, but to go behind or beyond them. As O’Loughin J observed in Staunton-Smith (at 173), “it is necessary to delve deeper to find the reasons for those arrangements.”
In this matter, the Tribunal only has before it the statement and testimony of the Applicant. No other witnesses were called, and, critically, the Tribunal did not receive any testimony from KB.
In circumstances when the evidence is limited to the perceptions and recollections of one person, it is critical that a decision-maker evaluate the credit of that person.
The Tribunal found the Applicant to be a witness of credit. She answered all the questions asked of her, no matter how personal or painful, with candour and without hesitation or equivocation. At no stage did the Tribunal observe the Applicant give answers that shied away from distressing events or potentially embarrassing moments. On the contrary, the Applicant appeared as a formidable witness who was frank, straightforward and apparently honest. In these circumstances, the Tribunal has been prepared to proceed on the basis that the Applicant’s statement and her testimony can be relied upon as a reliable account of her relationship with KB.
This has been a very difficult matter in that the evidence presented cuts both ways in terms of whether the Applicant and KB were in a de facto relationship during the period that they cohabited in KB’s Coorparoo home.
Looked at from the perspective of indicia that the Applicant and KB were in a de facto relationship, there are the following factors that weigh in favour of that proposition:
(a)the Applicant and KB lived together in KB’s Coorparoo home for a prolonged period of time, at least five years;
(b)during that time, the Applicant and KB shared a bedroom and were in a sexual relationship;
(c)the Applicant cooked the meals for herself, KB, and Karl, as well as KB’s two children, and they ate meals together as a family;
(d)the Applicant went on a holiday to New Zealand with KB and his children, and introduced KB and his children to the Applicant’s family – Tr. 15.6.2022 p. 12; and
(e)the Applicant and KB jointly purchased a motor vehicle that would accommodate their respective children (in the Applicant’s case, just Karl).
Critically, the fact that the Applicant and KB were in, what appears at first blush, a marriage-like relationship for a number of years would normally lead a decision-maker to the conclusion that they were in a de facto relationship for the purposes of the Act.
In this matter, however, when one delves deeper to find the reason for these arrangements, one is confronted with a quite different scenario. As has previously been noted, the relationship between the Applicant and KB was unusual, if not quite out of the ordinary.
The evidence before the Tribunal is as follows:
(a) neither the Applicant nor KB believed that they would live together indefinitely;
(b) the Applicant agreed to move in with KB to assist her son Marc and his family have a home;
(c) there was no pooling of financial resources between the Applicant and KB;
(d) there was no joint ownership of real estate or other major assets;
(e) there were no mutual wills or joint powers of attorney;
(f)there was no joint responsibility for providing care and support for their respective children;
(g)it appears that the parties did not hold themselves out to the wider world as being in a de facto relationship;
(h)there was little social interaction between the parties other than their joint love for rock’n’roll dancing;
(i)at no time did KB give the Applicant the emotional support she required;
(j)during the time that they lived together at Coorparoo, KB apparently had relations with other women;
(k)KB gave no financial assistance to the Applicant, even though she was, at times, in financial distress;
(l)the parties had separate friends and there is no evidence of any social gatherings involving the Applicant and KB with other persons, other than one friend of KB who would come for meals at the Coorparoo home.
It would appear that the idea of the Applicant moving in with KB was a suggestion from his grandmother and that, from the outset, KB was wary of committing to another person after the experience of a traumatic divorce.
In turn, the Applicant was quite candid when she stated and testified that the reason she moved in with KB, stayed with him, and returned to him after their first separation, was that it suited the needs of her family. Initially she moved to KB’s Coorparoo home so that her son Marc, who had a young family, and had drug abuse and mental health issues, would have a house to live in. The Applicant stated that Marc was suicidal, and she was desperate to try and help him.
Likewise, when she first left KB, the Applicant found it almost impossible to live with either her son Marc or daughter Janine, because living conditions were so cramped.
In short, the Applicant found it convenient to live with KB and their living arrangements sprang from mutual self-interest. Clearly, the Applicant found some companionship with KB. They both loved dancing, and people would not share a bed and engage in sexual relations unless there was at least some bond of friendship. The Tribunal has no reason to doubt that there was a friendship between the Applicant and KB, but there was not a bond of love and mutual support.
During the Hearing, I asked the following questions of the Applicant – Tr. 15.6.2022 p. 20:
“So you wouldn’t describe him as the love of your life?---No.
Would you---?---So he’s competing with my husband. He was the love of my life. Even though---
Would you say it a relationship of convenience, not born of financial interdependence and love?---Correct.”
Reference can also be made to the following exchange between the Tribunal and Mr Harding – Tr. 15.6.2022 p. 30:
“The length of the arrangement between them was certainly long enough but the relationship, even in that period where they were cohabiting, the relationship was one of in many senses, convenience because there were practical reasons why Mrs Kuhn needed to stay there. So the length of the relationship is to be seen in that light in my submission.
DEPUTY PRESIDENT: So summing up, you’d say that this wasn’t a short but deep relationship, but a long and shallow one.
MR HARDING: That perfectly sums it up…”
It would appear that it suited KB to have the Applicant move in with him, and likewise, it suited the Applicant. Their relationship, though lengthy, was shallow, and lacked most of the indicia of a loving and committed union. It was a purely utilitarian arrangement that was not intended to last forever, and only continued whilst it suited the interests of the parties.
In most respects KB held the Applicant at arm’s length. He was economical with his affection, his honesty and his money. The Applicant described him as selfish, and perhaps that sums up their relationship from her perspective.
Despite sharing a bedroom, it would appear from a deeper emotional point of view, the Applicant and KB were purely friends. In these circumstances, the Tribunal, having carefully weighed the evidence in light of the indicia in s 11A, has formed the view that the Applicant was not in a de facto relationship with KB.
DECISION
The Tribunal finds that the Applicant did not enter into a de facto relationship after the death of the Veteran, and is not precluded by the operation of s 13(8) of the Veterans’ Entitlement Act 1986 (Cth) from seeking a review of the reviewable decision.
I certify that the preceding 166 (one hundred and sixty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
...................SGD....................................................
Associate
Dated: 05/07/2022
Date of hearing: 15 June 2022 Applicant: By MS Teams
Counsel for the Applicant: Mr Anthony Harding
Counsel for the Respondent: Mr Andrew Dillon
Instructing Solicitor for the Applicant: Mr Terence O’Connor
Cockburn LegalInstructing Solicitor for the Respondent: Ms Madeleine King
Australian Government Solicitor
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