Moir and Repatriation Commission - [2001] AATA 180

DECISION AND REASONS FOR DECISION [2001] AATA 180

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/531

VETERANS' APPEALS DIVISION       )
           Re      Gloria Mavis Moir
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date12 March 2001
PlaceSydney

Decision      The decision under review is affirmed.
  ...................[sgnd]..................
  Ms SM Bullock
  Senior Member
Catchwords
VETERANS' AFFAIRS - War Widow's Pension - Dependent Member of a Couple – Marriage-Like Relationship

Legislation
Veterans' Entitlements Act 1986 ss 5E, 11A, 13, 24

Authorities
Jenkins v Repatriation Commission (1999) 56 ALD 379
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Re Secretary, Department of Social Security and Le-Huray (1995) 36 ALD 682
Pearce and Hornsey (1991) 29 FCR 239
Re Peck and Secretary, Department of Social Security (1992) 76 SSR 1107

REASONS FOR DECISION

Ms SM Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by Mrs Gloria Mavis Moir of a decision of a Delegate of the Repatriation Commission ("the Commission") on 30 June 1999 (T2), as affirmed by the Veterans' Review Board ("the Board") on 22 March 2000 (T14). Those decisions determined that at the time of Mr Gavan Byard's death, Mrs Moir was not living in a marriage-like relationship with Mr Byard and therefore was not an eligible dependant under the Veterans' Entitlements Act 1986. In those circumstances, Mrs Moir was not qualified to receive a War Widow's Pension.
A hearing was held before the Tribunal in Sydney on 19 December 2000. Mrs Moir provided oral evidence to the Tribunal, as did Mrs Beverley King, Mr Byard's daughter. Mrs Moir was represented by Ms A Toliopoulos, Advocate from the Legal Aid Commission of New South Wales. The Respondent was represented by Mr R Wallis, Advocate with the Department of Veterans' Affairs. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents" T1-T20) and the following exhibits:
Exhibit          Description Date
T-Documents T1-T20         Section 37 Statement and Documents    various
A1      Statutory Declaration of Mrs GM Moir     19 December 2000
R1      Photocopied photographs from page 84 of the T Documents undated

Issues

For the purposes of deciding whether Mrs Moir is qualified to receive a War Widow's Pension, the issue in this matter is whether or not Mrs Moir was in a marriage-like relationship with Mr Byard immediately before his death and if so, was she therefore a dependent of Mr Byard. Because Mr Byard was in receipt of a pension at the Special rate, if Mrs Moir establishes that she was dependent on Mr Byard, she would be qualified to receive a War Widow's Pension.
Legislation
A determination of this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").
Section 13 of the Act deals with eligibility for pension. Subsection 13(2) of the Act provides that:
"Eligibility for pension
…
(2)     Where:
(a)       a veteran has died;
(b)                  the death of the veteran was not war-caused; and
(c)                  the veteran was, immediately before the veteran's death:
(i)        a veteran to whom subsection 22(4) or section 24 applied; or
(ii)a veteran to whom section 22, 23 or 25 applied who was in receipt of a pension the rate of which had been increased by reason that the pension was in respect of an incapacity described in item 1, 2, 3, 4, 5, 6, 7 or 8 of the table in section 27;
the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with this Act.
…"

Section 11 of the Act defines the term "dependent" and as relevant states:
"Dependants
(1)       In this Act, unless the contrary intention appears:
dependant, in relation to a veteran (including a veteran who has died), means:
(a)       the partner; or
(b)       a non-illness separated spouse; or
(c)a widow or widower (other than a widow or a widower who marries or re-marries); or
(d)       a child;
of the veteran.
Note: a veteran may have more than one dependant of the kind referred to in paragraphs (a) to (d) at the same time.
…"

Section 5E of the Act deals with "Family Relationships definitions" and as relevant in relation to the definition of a "member of a couple" and "partner" provides:
"Family relationships definitions—couples
(1) In this Act, unless the contrary intention appears:
couple has the meaning given by subsections (2), (3) and (4).
member of a couple has the meaning given by subsections (2), (3),
(4) and (4A).
non-illness separated spouse means a person:
(a) who is legally married to a veteran but is living separately and apart from the veteran on a permanent basis; and
(b)whose separation has not resulted in a direction under subsection 5R(5); and
(c)       who is not receiving age or invalidity service pension.
partner, in relation to a person who is a member of a couple, means the other member of the couple.
partnered has the meaning given by subsection (5).
partnered (partner getting benefit) has the meaning given by subsection (5).
partnered (partner getting neither pension nor benefit) has the meaning given by subsection (5).
partnered (partner getting pension) has the meaning given by subsection (5).
Note: social security pension includes a rehabilitation allowance.
partnered (partner getting pension or benefit) has the meaning given by subsection (5).
war widow means a woman:
(a)       who was the partner of, or was legally married to:
(i)       a veteran; or
(ii) a person who was a member of the Forces for the purposes of Part II; or
(iii)a person who was a member of the Forces for the purposes of Part IV;
immediately before the death of the veteran or person; and
(b)      who is receiving:
(i)a pension payable under Part II or IV at a rate determined under or by reference to subsection 30(1); or
(iv)      a pension that:
(A) is payable under the law of a foreign country; and
(B) is, in the opinion of the Commission, similar in character to a pension or payment referred to in subparagraph (i) or (iii).
…
widow means:
(a)a woman who was the partner of a man immediately before he died; or
(b)a woman who was legally married to a man, but living separately and apart from him on a permanent basis, immediately before he died.
…
Member of a couple—general
(2)      A person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not living separately and apart from the other person on a permanent basis; or
(b)       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 section 11A), in a marriage-like relationship;
(iv)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
Note 1: for living with a person see subsection (3).
Note 2: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:
* an ancestor of the person; or
* a descendant of the person; or
* a brother or sister of the person (whether of the whole blood or the part-blood).
Note 3: subsection 5R(5) (determination in relation to an illness separated couple) is a qualification to the definition of a member of a couple.
Note 4: subsection 5R(6) (determination in relation to a respite care couple) is a qualification to the definition of a member of a couple
(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 absence of one of those persons resulting from illness or infirmity;
if the Commission is of the opinion that they would, but for the absence, have been living together during that period.
…"

Section 11A defines "marriage-like relationships" and as relevant provides:
"Marriage-like relationships
In forming an opinion for the purposes of this Act whether 2 people are living together in a marriage-like relationship, regard is to be had to all the circumstances of the relationship including, in particular, the following matters:
(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 married to 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 marriage-like relationship."

Background

The information contained herein is provided by way of background and is not in dispute.

Mrs Moir was born on 14 May 1923.
Mrs Moir first met Mr Byard in about 1970 or 1971, noting in her claim for a Widow's Pension that the relationship commenced on 8 August 1971 (T12, p61). At that time, she was separated from her husband, from whom she was subsequently divorced in 1983. Mrs Moir's ex-husband died in 1996.
Mr Gavan Byard (born 15 June 1922) had been divorced for many years when he met Mrs Moir. Mr Byard had two daughters, Beverley and Sheryl. Sheryl, who was Mr Byard's youngest daughter, died in 1990 through drug-related causes.
Mr Byard died at Gosford Hospital on 20 December 1996. He had been diagnosed six months earlier with cancer. The causes of death listed on Mr Byard's "Medical Certificate and Cause of Death" are:

"(a)     Aspiration pneumonia     1 day
(b)    Confusion 2nd Metabolic Disturbance    2 weeks
(c)    Acute Chronic Renal Failure         Metastatic Squamous Cell Carcinoma Tongue     4 months
        Chronic Airflow Limitation          5 Years
        Ischaemic heart disease               10 years "

(T12, p67)

On 25 June 1999, Mrs Moir lodged a claim for a War Widow's Pension (T12).
On 30 June 1999, a Delegate of the Commission decided that while Mr Byard had had a long term relationship with Mrs Moir;
"…it was not permanent and continuous as you suggest. There was no long term commitment. Your living arrangements were nor permanent. You were independent of each other.
I find that, prior to his hospitalisation in 1995, Mr Byard was living by himself and was not living in a marriage-like relationship at that time. Notwithstanding fortnightly visits by yourself to his daughter's place during the 18 months prior to his death I am not satisfied that your relationship was a marriage-like relationship at the time of his death" (T2, p5).

On 19 July 1999, Mrs Moir lodged an application for review to the Board, which subsequently determined on 22 March 2000, that while not doubting that Mrs Moir "remained a close and even loving friend during the veteran's last illness, something for which he and his family were no doubt properly grateful", the Board was not convinced that the separation of 18 months was temporary and it further noted that Mrs Moir had taken no steps to reside with the veteran, although she permanently moved to the area after his death. The Board concluded that it could not be reasonably satisfied that Mrs Moir and Mr Byard were in a marriage-like relationship immediately before his death or indeed at any time after their separation in 1991 (T19).

Evidence of Mrs Moir

Mrs Moir told the Tribunal that having met Mr Byard in 1970 or 1971, she fell in love and began to live with Mr Byard approximately six or nine months later. Mrs Moir stated that Mr Byard was a difficult man to live with but she understood him. She did have great difficulties in dealing with his gambling habits, however. Mr Byard gambled heavily and was a bad loser, Mrs Moir informed the Tribunal.
When Mrs Moir first met Mr Byard, he was employed and she recalled that he was always waiting for payday so that he could continue his gambling, having exhausted his pay from the previous week. It was quite usual for Mr Byard to ask his brothers, aunt and friends for loans "to feed" his gambling habit. On one occasion, Mr Byard asked Mrs Moir to approach Mr Byard's brother to borrow money on his behalf. Mrs Moir felt very uncomfortable with this but did his bidding. Mr Byard's gambling took many forms including attending the TAB on Saturdays. On one occasion, Mr Byard won $20,000.00, which he "bundled into his belt". Mrs Moir stated that Mr Byard never gave her any of the proceeds of his gambling gains. Mr Byard did not trust banks and had the practice of carrying his money around with him in a money belt.
Mrs Moir had her own bank account and did not know whether Mr Byard had a bank account, noting his distrust of banks. In terms of their day to day living expenses, they would pool their resources in the early days and shared bills. Mrs Moir stated that Mr Byard might have given her a few gifts during their time together. She would always buy him shirts, socks, trousers and the like over the years. Mrs Moir recalled that a few of her possessions went missing, believing that he may have used these for gambling. Mrs Moir confirmed that Mr Byard did not "leave her a cent" when he died.
A significant event in their lives occurred when Mr Byard was charged with what Mrs Moir believed to be "Bankcard fraud" and having been charged with this offence in 1974, he was on that particular occasion "bailed" that night. Mr Byard and Mrs Moir left their flat the next day. "We went underground", Mrs Moir stated. Mr Byard told Mrs Moir that he was not going to go back to court as he could not face the prospect of prison. He had Mrs Moir disguise him by dying his hair and their time together from 1974 onwards, was characterised by constantly moving accommodation to avoid detection. It is noted by the Tribunal that Mr Byard had during his army service spent time in jail for forgery and theft. Mr Byard and Mrs Moir then lived in various places throughout Sydney including North Sydney and in the Eastern Suburbs. Mrs Moir stated that they looked for their accommodation together. In the mid 1980s, Mrs Moir believed that Mr Byard attended court and the charges against him were dismissed. She recalls him coming home very happy saying that "his name had been cleared".
Mrs Moir was asked about the various addresses supplied by Mr Byard to the Department over the years as to his place of residence. The address of 4/70 Plowman Street, North Bondi in 1975, was that of his daughter, Beverley, Mrs Moir stated. The address of 5/45 Penkivil Street, Bondi, listed as the correct address for Mr Byard in 1966, Mrs Moir thought could have been Sheryl's address. An address of 8/131 Clovelly Road, Randwick in 1982, was that of Beverley's home and the address of 33 Lamrock Avenue, Bondi Beach in 1989, was that of Mr Byard's brother. The address of 17/54 Hopewell Street, Paddington in 1995, (given by Mrs Moir in her Statutory Declaration of 10 August 1999) was probably of a room he took across the road from Mrs Moir and used it as his address when going to the Magistrate to clear his name. This may have been in 1994 (T15, p79). Mrs Moir explained that Mr Byard had used these various addresses because he was trying to escape detection, he had a fear of being jailed. Mrs Moir did not like this life "on the run" and begged him to give himself up but he would not do so. The leases taken out in various properties were always in her name, Mrs Moir explained. She did this because she was never able to be sure that Mr Byard would pay the household bills.
After Mrs Moir's divorce settlement in 1988, she purchased her own flat in Centennial Park. Mrs Moir later sold this apartment and purchased another in Kirribilli. She later returned to live in the Eastern Suburbs, purchasing an apartment in Campbell Avenue, Paddington. Mrs Moir stated that Mr Byard lived with her at these various addresses and helped her with the expenses.
There was one occasion when Mr Byard and Mrs Moir had together inspected a property for the purpose of them jointly purchasing it. Mr Byard told the real estate agent that he would "sleep on it" but never recontacted.
Mrs Moir informed the Tribunal that Mr Byard was obsessed with money and referred to an incident arising out of an aunt's death in 1984 or 1986. Mr Byard had gone to sort out the estate and took a large amount of cash and also jewellery which he found. He did not tell the family of his discovery. The aunt had died intestate. Mrs Moir stated that Mr Byard sold the jewellery and gambled the cash. Mr Byard's brother found out about this and did not want to have anything to do with him from then on.
Mrs Moir ceased working in the 1980s because of asthma. She initially received Sickness Benefit from the then Department of Social Security and later was in receipt of an Age Pension at the single rate. Mrs Moir stated that she was living with Mr Byard at this time but had not told the Department of Social Security that she was living in a de facto relationship with Mr Byard.
Mrs Moir was referred to a receipt of 24 October 1987, for $500.00, which she had taken from an envelope containing $600.00 cash (T15, p75). At that time, Mrs Moir recalled that she and Beverley were paying rent and Mr Byard's other daughter Sheryl was staying with them at Sir Thomas Mitchell Road, Bondi. Mrs Moir stated that she made out a receipt in such a manner because of Mr Byard's concern about money. Mr Byard must have trusted her though because she knew where the cash was. Mrs Moir told the Tribunal that Mr Byard was in hospital after his first heart attack and had told her where he kept his money.
Mrs Moir was further referred to a letter to Mr Byard's daughter, Beverley, dated May 1990 and signed "Dad", which indicated that if his daughter wished to stay in the flat with Mrs Moir, she must contribute to the rent "to help Gloria" (T15, p76). Mrs Moir stated that the handwriting looked different to Mr Byard's usual handwriting and the date was wrong because Sheryl had already died at that point.
Mrs Moir told the Tribunal that she and Mr Byard presented themselves to the world as a couple. They were introduced at functions as "Gloria and Gavan". They would attend functions together such as weddings and birthdays and go out socially with friends. They visited each other's children and Mrs Moir was involved in the minding of Mr Byard's grandchildren, she told the Tribunal. Initially, Mrs Moir's own children had not liked Mr Byard but eventually came to like him. Mrs Moir used to visit Mr Byard's ex-wife with his children and she was introduced at that time as Mr Byard's "girlfriend". Mrs Moir told the Tribunal that Mr Byard had asked her to marry him on a number of occasions, initially when their relationship was quite new. At that time Mrs Moir was not divorced from her husband and for religious reasons, she did not accept his proposals. Mrs Moir stated that Mr Byard again proposed marriage to her in 1996. She explained that she had refused because there would be no purpose to the marriage. She would "not get anything" by marrying and why go through a ceremony in such circumstances. Mrs Moir and Mr Byard had been living together for many years in a de facto relationship and she was happy with this situation.

Mr MJ Madden, Pensions Officer of Brisbane Water (NSW) Legacy wrote on 31 May 1999, that:
"Unfortunately she [Mrs Moir] had little time to arrange a marriage after Mr Moir's death for it occurred only very shortly before the demise of Mr Byard – a period when he was seriously ill (T10, p53).
Mrs Moir reiterated that she did all the housework and she and Mr Byard went shopping together. Mr Byard did the "messages". Mrs Moir was also very involved with Mr Byard's children. Specifically, Mrs Moir informed the Tribunal that Mr Byard's daughter, Sheryl, was heavily involved in the over use of prescription drugs and Mrs Moir would try to assist with the problems arising, including dealing with the police. Mr Byard's son-in-law decided that Sheryl should leave and Mr Byard and Mrs Moir took her in. Unfortunately, Sheryl died in 1990 and Mrs Moir was sent for to attend Penrith Hospital. Mrs Moir was there when the decision was made to take Sheryl off the life support systems. Mrs Moir stayed with Sheryl throughout the night until she died at 8am the next morning.
The Tribunal was referred to a Statutory Declaration by Mr Byard's brother, Charles Ivan Byard, who on 31 May 1999, declared that Mrs Moir and his brother had lived in a de facto relationship for many years before Mr Byard died in 1996. Mr C Byard wrote:
"M/S (sic) Gloria Moir took great personal care of my late brother Gavan through-out (sic) these and previous years and was his constant and caring companion in his adversities.
During the last period of Gavan's life and because of his rapidly deteriorating physical & medical condition ect. (sic) it was decided he move into the house of his daughter M/S Beverley King situated at Bateau Bay in N.S.W. Thus both M/S Gloria Moir and Beverley King became his co-carers for at least one of them to be available for his care and personal needs at all times" (T9, p46 and 49).

Mrs Beverley Ellen King, Mr Byard's daughter, also provided a Statutory Declaration that Mrs Moir and her father had met in 1971 and were constant companions and were living together. Mrs King wrote that Mrs Moir stayed with her and her father and were very close. Mrs Moir was always beside Mr Byard when he became ill, including for his liver operation and two heart bypasses. Mrs King declared that for the last 18 months after his bypass in 1995, her father lived with her at Long Jetty as she was his carer but during that time, before his death, Mrs Moir stayed at Mrs King's home to be near him (T9, p48).
Mrs Moir told the Tribunal that she did not know why Mr Byard told hospitals such as Lady Davidson Hospital or the Department of Veterans' Affairs that the person for notification was his daughter and/or Mr Charles Byard and not her. She also did not know why Mr Byard had recorded on his papers that he was "living between daughters" or alone (T8, pp32, 34, 40, 42, 44 and T5, p20, 24, 25). Mrs Moir stated that Mr Byard's brothers did not want to have anything to do with Mr Byard because of his gambling and probably over his dealing with his aunt's estate.
The Tribunal was referred to a Concord Hospital Summary of Case History dated 13 January 1983, which stated that Mr Byard had had a ten year "affair with a woman one year his junior" which ended soon after his discharge from RGH Concord in November 1982 (T6, p29). Mr Byard had also completed a history of family health on 10 February 1983 and in the section dealing with "wife", he had noted and signed that he was divorced 25 years ago (T7). Mrs Moir could not explain why there was no reference to his relationship with her.
In about 1991, Mr Byard and Mrs Moir had a major argument over money. Mrs Moir accused Mr Byard of taking money from her. Mr Byard left and went to stay with his daughter Beverley. There were subsequently letters and telephone calls. A letter signed by Mr Byard, dated 24 February 1991, notes that they had parted at Mrs Moir's "insistence" in early 1991. Mr Byard wrote that he hoped that Mrs Moir would hold loving thoughts of him and stated that if she needed financial help he would be honoured to help her (T10, p57). Mrs Moir maintains this separation was only temporary and they resumed their relationship. The Tribunal was referred to a further letter from Mr Byard to Mrs Moir dated 20 March 1996, expressing Mr Byard's deep sympathy at the death of Mrs Moir's husband (T15, p82). This letter was also written in the context of Mr Byard having an argument with his daughter Beverley. He wrote:
"Please forgive me for sending that nasty letter a couple of days after leaving Sydney, I must be mad. You know that I have been quite sick, and I think that my world is coming completely unstuck.
If you could only know and understand that for the past 25 years you have been my salvation. I know that we had plenty of ups and downs, as I was most insanely jealous of your love and affections, without thought to anyone else in this whole crazy world….
I have been in such of a whirl since departing from your place on that Saturday morning this 2nd March ['96] that how I got back to Gosford, will (sic) never know.
What a bloody shame it was, that I couldn't have stuck it out for another week until the 9th when I could have offered some support….
All I know that you turned on me again, and I thought it best if I cut the scene, and headed off. How I got back to Long Jetty, I will never know as I was virtually pennyless, when I left your place. …
I know that I had no right to send you that letter on the 4th in which I said some unkind words to you, but as you have said yourself in the past, that we are a couple of hot heads, and say things that we really don't mean at the time.
Gloria, I am not asking for your forgiveness but only your understanding, as my nerves and health are shot to pieces at the present time. …
Once again for old times sake, please forgive me and don't hold one bad episode against me as you are the only true friend that I have got in this world.
…" (T15, p82, 83)

In 1995, Mr Byard had had a heart attack and was admitted to St Vincent's Hospital. He was transferred from St Vincent's Hospital to Lady Davidson Hospital for recuperation. At that time, there was no diagnosis of the cancer which eventually killed Mr Byard. Mrs Moir stated that she visited Mr Byard at Lady Davidson Hospital. Unexpectedly one day, Mrs Moir received a phone call at her home in Sydney stating that Mr Byard had been discharged from Lady Davidson Hospital to his daughter Beverley's home at Long Jetty. Mrs Moir was completely shocked by this revelation as there had been no discussion with her of Mr Byard going to live with Beverley. Mrs Moir told the Tribunal that she would have expected that she would be consulted about such a matter. She was angry and upset that these arrangements were not discussed with her. Mrs Moir left Sydney on the next day or so to go to see Mr Byard at Long Jetty. He told her that he did not like being at Long Jetty but Mrs Moir, having thought about it, explained to Mr Byard that it was probably better for him to be looked after at Mrs King's home as it was flat, sunny and a better environment for him. In contrast, Mrs Moir described her apartment as being dark, a one-bedroom unit which had to be negotiated up some stairs. Mrs Moir stated that at that time she and Mr Byard had plans that when he was better he would return to Sydney to live with her.
The arrangement put in place following Mr Byard's relocation to Mrs King's home was that Mrs Moir would visit every fortnight and stay two weeks with Mr Byard. She did not consider selling her unit to move closer to Mr Byard or staying with Mr Byard in Long Jetty on a more permanent basis. Mrs Moir stated that she had her affairs in Sydney to attend to including her position on the Strata Title Committee, the payment of bills and the like.
When staying at Long Jetty, Mrs Moir would make sure that Mr Byard received his proper meals and was looked after. During their fortnightly period together they would share the same room and bed. This routine continued until Mr Byard was diagnosed with cancer some six months before he subsequently died. Mrs Moir did not, at that time, reconsider moving to Long Jetty to be closer to Mr Byard.
Mrs Moir told the Tribunal that on 13 December 1996, she was in her Paddington apartment and received a telephone call that Mr Byard had been hospitalised and was in renal failure. She travelled immediately to see him but he did not recognise her. Mrs Moir stayed in Long Jetty and on 19 December 1996, received a telephone call from Gosford Hospital that Mr Byard was not expected to live. Sadly he died on 20 December 1996.
Mrs Moir told the Tribunal that she was devastated when Mr Byard died and then thought of herself as a widow. There had never been anyone else in either of their lives since they had met, Mrs Moir stated.
Mrs Moir told the Tribunal that after Mr Byard had died, she had not kept all of his letters, though she did keep some from the war, noting that Mr Byard had a gift for writing.
Mrs Moir told the Tribunal that she did not know whether she was a beneficiary under Mr Byard's will but in fact did not receive anything from his estate. He never spoke to her about such matters. Further, Mrs Moir did not know that Mrs King had Power of Attorney for Mr Byard.
Following Mr Byard's death, Mrs Moir stayed at Paddington for two years. She was very lonely and felt lost without Mr Byard. Mrs Moir became very depressed and then Mrs King suggested that she move closer to live near her, which Mrs Moir subsequently did. Mrs Moir stated that she sees Mrs King about twice a week when Mrs King visits. Mrs Moir concluded that Mr Byard was someone with whom she could not get through life without. She went to the funeral, though found this extremely difficult. In her written statement, Mrs Moir wrote:
"Our relationship was a loving relationship full of ups and downs because of his compulsive gambling. He gambled every cent and this was the reason why we did not have property together or bank accounts. I did all the shopping, cleaning and cooking. When he was in a good mood I would ask him for house money. I would even buy him clothes because he would just gamble all his money" (Exhibit A1).

Evidence of Mrs Helen Anne Irwin

Mrs Irwin provided a Statutory Declaration, dated 26 July 1999 (T15, p81), declaring she had known Mr Byard and Mrs Moir as friends since the 1970s. Mrs Irwin wrote:
"Gavan and Gloria lived in the Eastern Suburbs together and were a very happy and loving couple and I visited them occasionally. Gloria was with Gavan when he had all his health problems and after his last operation. It was only a matter of time for Gavan, and Gloria was with him to the end."

At the hearing, Mrs Irwin stated that Mrs Moir's daughter and she were best friends and this was how the association with Mrs Moir was established. Mrs Irwin then met Mr Byard through Mrs Moir.
While neither Mrs Moir nor Mr Byard came to her wedding, Mrs Irwin noted that she and her husband would often go out together with Mrs Moir and Mr Byard to a hotel or a club. They visited Mr Byard and Mrs Moir and considered them to be a couple. In 1985, when Mr Byard had severe heart problems and subsequent hospitalisation, Mrs Irwin did not visit Mr Byard in hospital but inquired after his health by phoning either Mrs Moir or Mrs Beverley King. Mrs Irwin would converse approximately once per month with Mrs Moir by telephone. Mrs Irwin confirmed that Mr Byard and Mrs Moir had, in their early association since 1970/71, changed addresses every three to six months. Mrs Irwin understood that this was related to Mr Byard's "dubious nature" noting Mr Byard's gambling and very secretive nature. When Mrs Moir purchased her unit, Mrs Irwin observed that Mr Byard and Mrs Moir ceased changing addresses. She knew of the Cook Road, Centennial Park address, a unit in Kirribilli and also on the North Shore of Sydney.
Mrs Irwin described how Beverley King had taken Mr Byard to live at Long Jetty. "She packed him up and took him" stating it was in Mr Byard's best interest.
Mrs Irwin stated that Mr Byard professed his love to Mrs Moir. He had a tattoo across his chest, "Gloria", which he had done in the 1970s. Mrs Irwin also stated that Mr Byard had wanted to marry Mrs Moir and had asked her "umpteen times" but as Mrs Irwin understood the situation, Mrs Moir had refused on religious grounds.
Submissions
Ms Toliopoulos, representing Mrs Moir, submitted that the oral evidence from Mrs Moir, Mrs Irwin and the documentary evidence, establishes that Mrs Moir and Mr Byard had had a marriage-like relationship between 1971 until Mr Byard's death in December 1996.
Ms Toliopoulos submitted that Mr Byard was a colourful and perhaps "shady" character and his relationship with Mrs Moir was complicated and not traditional. The many changes of addresses in their initial relationship were as a consequence of Mr Byard's efforts to avoid detection and imprisonment. Mr Byard's move to live at his daughter Beverley's home at Long Jetty, was a practical consideration arising out of his health needs. Despite Mrs Moir's anger and hurt at the way this move was handled, Mrs Moir was able to put this behind her and consider the overriding welfare of Mr Byard.
Mrs Moir continued her care, concern and involvement with Mr Byard as evidenced by her fortnightly visits to Long Jetty, during which time they shared the same bedroom and intimacy. In these circumstances, Ms Toliopoulos submitted that Mrs Moir was more than a carer.
Ms Toliopoulos referred the Tribunal to a letter to Mrs Moir from Mr Byard dated 20 March 1996, in which he wrote of Mrs Moir being his salvation for 25 years and asking for her forgiveness and understanding for his behaviour (T15, pp82, 83).
Ms Toliopoulos contended that Mr Byard and Mrs Moir were seperated because of Mr Byard's illness. The Tribunal was referred to Jenkins v Repatriation Commission (1999) 56 ALD 379 where at paragraphs 19 and 24 of that decision, Hely J noted:
"In its application to the present case, s5E(3) required the AAT to decide:
(a) Whether the applicant and the veteran were once living together.
(b) Whether the absence of the applicant from that joint relationship resulted from the illness or infirmity of the veteran.
(c) Whether, in the opinion of the AAT the parties would have been living together in the period in which they were apart, were it not for (b).
Point (a) is uncontroversial. Points (b) and (c) would require the AAT to determine why it was that the applicant withdrew from the relationship and whether, if the absence was one which began as a result of illness, it continued for that reason alone; (cf) Pearce and Hornsey (1991) 29 FCR 239 at 244."
"Whether the applicant would, but for absence resulting from illness, have been living with the veteran at the time of his death involves an assessment of the probabilities taking account of the vicissitudes of life. The applicant's evidence as to her hopes or expectations cannot necessarily be determinative of the question."

Ms Toliopoulos contended that people in love, particularly of the older generation, do not abandon each other because of illness. Even after Mr Byard's death, Mrs Moir had moved to live closer to Mr Byard's daughter as she was lonely and missing Mr Byard.
In conclusion, Ms Toliopoulos submitted that the decision under review should be set aside and a Widow's Pension be granted to Mrs Moir with effect from 21 December 1996, the day after Mr Byard's death.
Mr Wallis, for the Respondent, referred to Jenkins v Repatriation Commission (supra) noting that at paragraph 24, Hely J had concluded that decision-makers need to consider if, but for the absence of illness, in that case, Mrs Jenkins would have been living with her husband. Mr Wallis urged the Tribunal to consider that Hely J noted that Mrs Jenkin's evidence as to her hopes and expectations were not necessarily determinative of the question of whether she would have been living with her husband if he had not been ill. Mr Wallis contended that answers to these issues must be looked at on the balance of probabilities.
Mr Wallis urged the Tribunal to consider that while section 11A of the Act contained indicia of a marriage-like relationship, this was not a definitive list and there may be other factors which needed to be considered in the individual case concerned. It is also important, Mr Wallis submitted, that the Tribunal consider the requirements of section 5E of the Act which provides that to be a dependent or partner of Mr Byard for the purposes of qualification for a War Widow's pension, this must be the status immediately before the death of Mr Byard.
Immediately prior to Mr Byard's death, Mr Wallis submitted that Mr Byard and Mrs Moir were not a member of a couple. Mr Wallis further referred the Tribunal to the fact that Mrs Moir was in receipt of an Age Pension from the Department of Family and Community Services at the single rate. Mr Byard had not advised the Department of Veterans' Affairs or Lady Davidson Hospital that he was living in a de facto relationship or that he and Mrs Moir were partners. The only reference, it seems, to Mrs Moir occurred in a Lady Davidson Hospital Pre-admission Form in June 1995, which listed Mrs Moir as a "friend" (T8, p42). Mr Wallis submitted that a friend, even a very close friend, as Mrs Moir may have been, is not the same as being a partner nor being involved in a marriage-like relationship. In the early years of Mr Byard's and Mrs Moir's association, Mr Wallis noted that perhaps the many changes of address were as a response to escaping bank fraud charges and possible apprehension and imprisonment. This could be a plausible explanation but the Respondent was not sure, Mr Wallis submitted. There was a significant impediment to Mrs Moir's claims of being Mr Byard's de facto wife, however, in that the Department of Family and Community Services had not been told of the relationship between Mr Byard and Mrs Moir and nor had the Department of Veterans' Affairs.
Concerning the letter to his daughter Beverley King of May 1990 (T15, p76), Mr Wallis noted that Mr Byard was providing bank withdrawal slips for his daughter and not to Mrs Moir. There is also the request that Mrs Moir be helped out if she required assistance, but not as a regular matter of course. Mr Wallis noted Mrs Moir's suggestion that this letter may not have been in Mr Byard's writing, but there is no evidence Mr Wallis submitted, one way or the other, to support this contention.
Mr Wallis contended that even if there was a marriage-like relationship between Mr Byard and Mrs Moir until 1995, the test was whether the relationship was marriage-like immediately prior to Mr Byard's death.
In conclusion, Mr Wallis submitted that there simply was not sufficient evidence to support a finding of Mr Byard and Mrs Moir being in a marriage-like relationship at the relevant time and in such circumstances the decision under review should be affirmed.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
In order for Mrs Moir to succeed in her application for review, the Tribunal must consider whether or not under the provisions of the Act, Mrs Moir and Mr Byard had a marriage-like relationship immediately prior to Mr Byard's death.
The Tribunal finds that Mr Byard and Mrs Moir commenced a relationship which was marriage-like in about 1971. Their relationship was characterised initially by frequent relocation occasioned by Mr Byard trying to avoid detection in relation to Bankcard fraud charges. In 1988, or thereabouts, with Mrs Moir's purchase of her own property from the proceeds of her divorce settlement, the many relocations of Mrs Moir and Mr Byard seemed to cease and the Tribunal accepts that Mrs Moir and Mr Byard were living together. The Tribunal notes the various addresses obtained from Mr Byard's Departmental file, which indicate from the mid 1970s, differing addresses for Mr Byard with members of his family, either with one of his daughters, Beverley and Sheryl or his brother. The Tribunal further accepts that in or about 1994, Mr Byard attended court and cleared his name after which time the need for differing addresses may have abated.

In 1991, the Tribunal finds that there was a separation between Mr Byard and Mrs Moir of some significance. It is difficult to determine whether the relationship ever restabilised in the form of a marriage-like relationship, however the Tribunal is prepared to accept that a reconciliation did occur. It is clear to the Tribunal that Mr Byard's and Mrs Moir's relationship was complicated, complex and certainly not a traditional relationship. It is incumbent on decision-makers that consideration of the concept of a marriage-like relationship should involve an examination of both subjective and objective matters and an ability to look at the relationship in the context of the individuals concerned. In today's society, there are extraordinarily diverse factors which could be considered as constituting a marriage-like relationship. The Tribunal further considers that in thoroughly examining the indicia of a marriage-like relationship, consideration should be given to the evidence concerning the presence of a marriage-like relationship as well as factors which indicate that no marriage-like relationship existed. The Tribunal has gained some guidance from consideration of Re Secretary, Department of Social Security and Le-Huray (1995) 36 ALD 682 in which it was noted that:
"There is such variation in relationships between couples that it is very had to say which relationships are 'marriage-like' and which are not."

That decision went on appeal to the Federal Court, however the Federal Court accepted that Tribunal's findings of there being a marriage-like relationship. The Tribunal also referred to Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164. While the Tribunal notes that that decision specifically dealt with the issue of living separately and apart, the decision was useful in addressing issues which have been raised in Mrs Moir's case. The Tribunal is of the view, however, that these decisions and certainly the indicia of a marriage-like relationship contained in section 11A of the Act do not contain an exhaustive list of criteria to be addressed when determining whether a marriage-like relationship existed. The Tribunal must give weight to each factor in the individual case. The object is then to identify the presence or absence of the essential character of a marriage-like relationship as was discussed in Re Peck and Secretary, Department of Social Security (1992) 76 SSR 1107.

The Tribunal finds that a major turning point in Mr Byard's and Mrs Moir's relationship occurred in 1995, when Mr Byard had a major heart attack and was taken to St Vincent's Hospital. He was later transferred to Lady Davidson Hospital and from there to the Long Jetty home of his daughter, Beverley King. Mr Byard stayed at Long Jetty for a period of 18 months until his death. There was at least one occasion when Mr Byard visited Mrs Moir which indicated his recuperation and ability to travel. He only stayed temporarily with Mrs Moir having had what the Tribunal believes, was one of many heated arguments with her.
The Tribunal must balance the objective and subjective evidence in this case. There are Statutory Declarations from Mrs King, Mr Charles Byard and Mrs Gloria Moir which indicate that Mr Byard and Mrs Moir were a "happy, loving couple" (T15, p81); in a "de facto relationship for many years" before Mr Byard died in December 1996 (T9, pp46, 49); and "constant companions and living together" (T9, p48).
Mrs Moir claims a de facto relationship with Mr Byard from 1971 until Mr Byard's death.
Against this evidence, there are documents signed by Mr Byard which do not indicate a marriage-like relationship with Mrs Moir. In this regard the Tribunal notes the "History of Family Health", completed and signed by Mr Byard on 10 February 1983, in which in relation to the category "Wife", he notes he was divorced 25 years ago (T7, p31). A Disability Pension Medical Report of 22 February 1983, indicates that Mr Byard was living between his two daughters and accepting charity from his daughters (T5, p25). Further, a Rehabilitation Report of 13 January 1977 (T5, p20), states that he is living with his daughter and her son. A Department of Veterans' Affairs "Summary of Case History", dated August 1983, noted that Mr Byard had a 10 year affair with a woman one year his junior but which had ended soon after his discharge from hospital in December 1982 (T6, p29). Even if the Tribunal accepted that these reports of different living arrangements than that reported by Mrs Moir were as a result of Mr Byard trying to protect his identity or in some way related to his wish to avoid detection, more recently, the Lady Davidson Nursing Plan of 13 June 1995, notes that Mr Byard's next of kin is Mrs B King and the person for notification is Mr Byard's brother, Mr Charles Byard (T8, p32). The Admission Form of the same date has recorded Mrs King as the person for notification and the subsequent Discharge Summary noted that Mr Byard was discharged to "home" where he lives with his daughter (T8, pp38, 40,42). A further note to the Department of Veterans' Affairs in relation to a change of circumstances received by the Department on 25 July 1995 and signed by Mr Byard indicated that Mr Byard had moved to 2/20 Pacific Street, Long Jetty where he was living with his daughter. He still wished to retain the postal address of Post Office Box 234, Bondi Beach. Mr Byard noted that he had given his daughter authority to represent him in relation to "DVA matters" (T9, p44).
While Mrs Moir, Mrs King and Mr Byard assert that Mr Byard and Mrs Moir were living in a de facto or marriage-like relationship up until his death, the Tribunal cannot ignore the records from Lady Davidson Hospital and Mr Byard's own records with the Department of Veterans' Affairs, which would indicate that while Mrs Moir may have considered herself to be part of a marriage-like relationship, the expression to the world by Mr Byard was that there was no such marriage-like relationship. In so finding, the Tribunal does not doubt form Mr Byard's letters to Mrs Moir that he cared for and indeed loved her.
The Tribunal also considers that the manner in which Mr Byard went in 1995 to live with his daughter at Long Jetty was not indicative of a set of circumstances, which might have occurred, had there been a marriage-like relationship. The evidence before the Tribunal on this issue is that Mrs Moir had no idea of Mr Byard going to Long Jetty, there was no discussion between Mr Byard and Mrs Moir nor indeed Mrs King. The Tribunal would have thought that if there had been the closeness of a marriage-like relationship, such matters would have been discussed and certainly Mrs Moir would have been consulted.
The Tribunal further does not doubt that it made good sense for Mr Byard to live at Mrs King's home as it was a more suitable and practical solution to his health needs at the time. There was a separation because of illness between Mr Byard and Mrs Moir but this was not a separation of members of a couple who were in a marriage-like relationship. The Tribunal is not reasonably satisfied that had Mr Byard not been ill, that he and Mrs Moir would have lived together after his discharge from Lady Davidson Hospital in 1995.
Turning to other indicia of a marriage-like relationship, Mr Byard and Mrs Moir did not have any joint ownership of real estate nor rental property. They also had no joint assets or liabilities. While there may have been earlier pooling of resources to meet household financial commitments, there is certainly no evidence of such arrangements for at least 18 months from 1995, when Mr Byard was living with Mrs King. There is also no evidence of legal obligations nor sharing of day to day household expenses from 1995 onwards. Earlier, the Tribunal accepts that Mr Byard and Mrs Moir may have minded Mr Byard's grandchildren, this certainly was not the case since 1995, though the Tribunal accepts that illness may have played a part in that. Living arrangements since 1995 were that Mr Byard was living with his daughter.
There is evidence that during the 18 month period from 1995, prior to Mr Byard's death, that Mr Byard was sufficiently recovered to travel to Sydney and stay on at least one occasion with Mrs Moir. Further, there is no objective evidence, however, to indicate that this was other than a temporary respite. There is no indication from the material and the letters provided that he was intending to live permanently in a marriage-like relationship with Mrs Moir following his recuperation. Thus, although there was an initial separation between Mr Byard and Mrs Moir because of illness in 1995, prior to the establishment of cancer in mid 1996, there is no indication that separation because of illness was a major factor. Once cancer had taken hold, Mr Byard was once again unable to travel because of illness.
Considering the social aspects of Mr Byard's and Mrs Moir's relationship, namely, that Mrs King and others considered that "Gloria and Gavan" held themselves out as being in a de facto relationship, the Tribunal does not however consider on all the evidence that Mr Byard held himself out to be in a marriage-like relationship.
Mrs Moir's evidence to the Tribunal was that when she stayed with Mr Byard during the 18 months prior to his death that they would share the same bed. This may be so, however, this fact must be considered in the context of all the other evidence which the Tribunal has considered, indicating that no marriage-like relationship existed.
In relation to the nature of the commitment between Mr Byard and Mrs Moir, the Tribunal finds that on objective considerations they were close friends, as evidenced by Mrs Moir's regular visits to see Mr Byard and his letters to her. However, Mrs Moir did not go to live with Mr Byard after 1995 on a permanent basis nor did she attempt to relocate closer to him, either on a temporary basis by renting out her property in Paddington or by selling her property. Further, Mr Byard may have visited Mrs Moir after 1995, but there is no indication that this was to re-establish a marriage-like relationship. It is clear that there was companionship and emotional support between Mrs Moir and Mr Byard but that also arises out of close friendship. The other objective consideration is that Mrs Moir, despite her assertions that she was living in a marriage-like relationship, had not found it necessary to advise the then Department of Social Security of the existence of this marriage-like relationship as she was in receipt of an Age Pension at the single rate.
The relationship between Mrs Moir and Mr Byard is full of complexities and contradictions. The Tribunal considers that the relationship had its many ups and downs and was characterised by separation and reconciliation. On an examination of all the evidence, both subjective and objective, the Tribunal considers that at the time immediately prior to Mr Byard's death in December 1996, Mr Byard and Mrs Moir were not in a marriage-like relationship. The Tribunal makes this finding in full consideration of the need to examine non-traditional relationships in the contemporary context.
Accordingly, in all the circumstances and for the reasons expressed above, the Tribunal finds that under the provisions of section 5E of the Act, Mrs Moir was not a partner to Mr Byard nor a member of a couple immediately before Mr Byard died. In such circumstances she was not a dependant of Mr Byard. Having so found, the Tribunal decides that Mrs Moir is not qualified to receive a War Widow's pension. The decision under review is therefore affirmed.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         ............[sgnd]..................................................................
  Sharonne Brainenberg, Associate
Date of Hearing  6 December 2000
Date of Decision  12 March 2001
Representative for the Applicant              Ms A Toliopoulos, Advocate with the Legal Aid Commission of New South Wales
Representative for the Respondent        Mr R Wallis, Solicitor and Advocate with the Department of Veterans' Affairs