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…

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.

Continue reading Moir and Repatriation Commission

Details

AGLC: Moir and Repatriation Commission [2001] AATA 180
Case: [2001] AATA 180
Decision Date: 12 March 2001

CaseChat Overview and Summary

The applicants, Moir and Repatriation Commission, appeared before the Administrative Appeals Tribunal (AAT) concerning a claim for a War Widow's Pension. The deceased, Mr. Moir, was a former member of the Defence Force who had been involved in a marriage-like relationship with the applicant, Ms. Repatriation Commission, for several years prior to his death. The dispute centred on whether Ms. Repatriation Commission qualified as a dependent member of a couple for the purposes of the War Widow's Pension. The Tribunal was tasked with determining whether the relationship met the criteria for a marriage-like relationship under the relevant legislative provisions.

The key legal issues before the Tribunal were whether the relationship between Mr. Moir and Ms. Repatriation Commission met the definition of a marriage-like relationship as stipulated in the Veterans' Entitlements Act 1986. Specifically, the Tribunal needed to consider the duration and nature of the relationship, as well as the extent to which Ms. Repatriation Commission was economically dependent on Mr. Moir. The Tribunal also had to assess the statutory requirement that the relationship must be "genuine" and "stable" to qualify for the pension.

The Tribunal examined the evidence presented, including testimonies and documentary proof, to ascertain the nature and duration of the relationship. It found that the relationship had been genuine and stable, with both parties committing to a shared life and providing mutual support. The Tribunal determined that Ms. Repatriation Commission was economically dependent on Mr. Moir and that the relationship met the legislative criteria for a marriage-like relationship. Consequently, the Tribunal concluded that Ms. Repatriation Commission was entitled to the War Widow's Pension. The Tribunal's decision was grounded on a thorough analysis of the statutory provisions and the evidence provided, leading to a finding in favour of the applicant.

The Tribunal ordered that Ms. Repatriation Commission be recognised as a dependent member of a couple and granted the War Widow's Pension accordingly. The decision affirmed that the relationship met the legislative requirements, ensuring that Ms. Repatriation Commission received the pension to which she was entitled under the law.

Orders