Kuhn and Repatriation Commission (Veterans' entitlements) - [2022] AATA 2151

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Kuhn and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] AATA 2151
Decision Date: 5 July 2022

CaseChat Overview and Summary

This matter concerned an application for a war widow's pension by the Applicant, who was the widow of a deceased Veteran. The central dispute before the Tribunal was whether the Applicant had entered into a de facto relationship with another person, KB, after the Veteran's death. If such a relationship were found to exist, the Applicant would be ineligible to claim the war widow's pension.

The legal issue before the Tribunal was to determine whether the Applicant and KB were in a de facto relationship during the period they resided together in KB's home. This determination required the Tribunal to consider the indicia outlined in section 11A of the relevant legislation, while also delving into the subjective reality and perception of the relationship between the parties.

The Tribunal reasoned that while several factors pointed towards a de facto relationship, including cohabitation for a prolonged period, sharing a bedroom, a sexual relationship, shared meals, joint holidays, and the joint purchase of a vehicle, these were not determinative in isolation. Crucially, the Tribunal found no evidence of a significant pooling of financial resources, noting that the Applicant and KB operated independently financially. Furthermore, the Applicant's testimony indicated that KB had made it clear he was not seeking a committed relationship and had not discussed his financial affairs with her. The Tribunal placed significant weight on the Applicant's candid and credible testimony, concluding that neither party perceived themselves as being in a de facto relationship.

Ultimately, the Tribunal concluded that the evidence did not establish that the Applicant and KB were in a de facto relationship. Consequently, the Tribunal had jurisdiction to proceed with the substantive application for the war widow's pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.”CONSIDERATIONIntroduction 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.