Moore and Repatriation Commission - [2002] AATA 518

DECISION AND REASONS FOR DECISION [2002] AATA 518

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/658

VETERANS' APPEALS DIVISION          )
           Re      Mary Marcella Moore
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date27 June 2002
PlaceSydney

Decision Pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that Mrs Moore was a dependant as defined in the Veterans' Entitlements Act 1986.

..............................................
Ms S M Bullock
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement to Widow's Pension – Dependant – Whether a "Partner" of Veteran at time of his death – Whether a Member of a Couple – Whether in a Marriage-Like Relationship.

LEGISLATION

Veterans' Entitlements Act 1986 ss 5E(1), 5E(2), 5E(3), 11, 11A

AUTHORITIES
Garner v Repatriation Commission (1998) 53 ALD 297
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
In the Marriage of Todd (No 2) (1976) 25 FLR 260
Pearce v Hornsey (1991) 29 FCR 239

REASONS FOR DECISION

27 June 2002 Ms S M Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Mary Marcella Moore, "the Applicant", of a decision of the Repatriation Commission ("the Commission") dated 12 April 2000 (T2), as affirmed by the Veterans' Review Board ("The Board") dated 6 March 2001 (T30). Both the Commission and the Board decided that Mrs Moore was not entitled to claim a pension in respect of the death of her husband, Neville Francis Moore (known as "Bill"), as Mrs Moore was not a dependant as defined in the Veterans' Entitlements Act 1986. Mr Moore died on 12 September 1986 aged 61 years (T24, p35).
A hearing was held before the Tribunal in Sydney on 14 November 2001. Mrs Moore was represented by Mr M Vincent of Counsel and the Respondent, the Commission, was represented by Ms T McConnell, Departmental Advocate. Mrs Moore provided oral evidence to the Tribunal as did Mr Brian Moore, Mr and Mrs Moore's son. Documents were lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T31) and the following documents were also taken into evidence:
Exhibit No.   Description Date
A1      Statement by Mrs Mary Marcella Moore 13 September 2001
A2      Statement by Mr Brian Moore       3 September 2001
A3      Statement by Mr D Mitchell           9 January 2001
A4      Statement by Dorothy M Cook     Undated
A5      Series of five photographs featuring Mr Moore and family      1976, 1983, 1984, 1996
A6      Report by Dr M H L de Groot        24 June 1985
R1      Armidale and New England Hospital records     9 August and 10 May 1976
R2      Department of Veterans' Affairs "Change of Address" forms 1981, 1984
R3      Department of Veterans' Affairs form - "Advice of Death From Other Than A Repatriation Hospital"       16 September…

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 Moore and Repatriation Commission

Details

AGLC: Moore and Repatriation Commission [2002] AATA 518
Case: [2002] AATA 518
Decision Date: 27 June 2002

CaseChat Overview and Summary

In the matter of Moore and the Repatriation Commission, the court was called upon to determine the entitlement of Mrs Moore to a widow’s pension under the Veterans' Entitlements Act 1986. The central issue was whether Mrs Moore was considered a "partner" of the deceased veteran, Mr Moore, at the time of his death, thereby qualifying her as a dependant for pension purposes. The dispute hinged on whether the relationship between Mrs Moore and Mr Moore constituted a marriage-like relationship or if they were members of a couple living in separate households.

The court had to examine the nature of the relationship between Mrs Moore and Mr Moore, particularly focusing on whether they were in a marriage-like relationship or if they were members of a couple despite living in separate households. Evidence presented by Mrs Moore highlighted their close bond and mutual devotion, with her expressing that their relationship felt like a marriage despite living apart. Mr Moore’s son, Brian, corroborated these sentiments, noting that his parents remained devoted to each other despite their separation due to Mr Moore’s alcoholism. The court also considered the practical aspects of their relationship, such as Mrs Moore’s care for Mr Moore and their frequent discussions about family matters, which resembled those of a married couple.

In delivering its decision, the court weighed the evidence of the emotional and practical aspects of the relationship between Mrs Moore and Mr Moore. The court recognised the deep affection and commitment between the parties, noting that their separation was primarily due to Mr Moore’s incapacitating alcoholism. The court concluded that despite the physical separation, the couple maintained a marriage-like relationship, with Mrs Moore fulfilling the role of a caring partner. This determination was pivotal in establishing Mrs Moore’s eligibility for a widow’s pension.

The court ruled in favour of Mrs Moore, finding that she was indeed a dependant of Mr Moore at the time of his death and thus entitled to a widow’s pension. This decision underscored the importance of the emotional and practical aspects of a relationship in determining eligibility for veterans’ benefits.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mrs Moore concluded her evidence by telling the Tribunal that she and Mr Moore "thought the world of each other". At the end of his life, Mr Moore thought he had become a burden on his family because he was very ill. Mrs Moore did all she could in her power to look after Mr Moore and did not feel guilty about the arrangements put in place in order to do this. "There was too much deep feeling" to not take care of Mr Moore, she told the Tribunal. She was closer to Mr Moore near the time of his death than when they had parted the second time. In her statement, Mrs Moore noted that Mr Moore and she would see each other every day and that it felt like they were married but just living in different houses. They talked about issues to do with the children and other family matters such as a married couple would do. The only reason they were not living together was because Mr Moore had been so ill from his alcoholism, that it made him a different person who was impossible to live with. When the effects of the alcoholism receded, once again their thoughts and discussions turned to him coming back home. Evidence Of Mr Brian Francis Moore Mr Brian Moore stated that he moved in 1976, the year his parents divorced, to Sydney for one year. He later returned and lived in Armidale until 1986. Brian Moore returned to Sydney and was in Sydney when his father died. Mr Moore described his family as consisting of Mum and Dad, Neville, Rhonda, Gail and himself. When the family lived at Walcha Road, Uralla from 1982, there was never any question of Mr and Mrs Moore as being anything other than "Bill and Mary", the couple. Mr Moore stated that his mother's feelings never changed for his father and that she was devoted to Mr Moore. Mr Moore furthermore believed that his father's feelings were the same for Mrs Moore, apart from when he was influenced by alcohol. When Mr Moore senior was inebriated, he was a changed person – "it made him hard to love", Mr Moore stated. When Mr Brian Moore lived in Armidale, his home was across the road from the hospital and that was the reason his name was most often placed on the hospital documents because not only was he most frequently the person who took Mr Moore to hospital but he was the one who could be readily contacted should there be a need. Mr Moore stated that when his father and mother were living together at Walcha Road, Mr Moore was presenting major problems. On one occasion, Neville Moore found his father threatening his mother with a knife. Mr Moore senior's deliriums became more and more unacceptable and unpredictable. He was ranting and raving, was nonsensical and had night wanderings. His father's hygiene was atrocious, Mr Moore stated and he was unable to control his bodily functions. Mrs Moore would always clean Mr Moore up, cook for him and care for him. Mr Brian Moore stated that as the eldest son, he took certain responsibilities in terms of assisting his mother and father. The family had discussed Mr Moore's welfare particularly in 1985, looking at the options in terms of his care. In this regard, Mr Brian Moore spoke to a nursing sister, Ms O'Brien about the possibility of nursing home care. There are two nursing homes in Armidale. However, Mr Moore was told that because of his father's behaviour and his chronic problems, a nursing home would not accept him particularly when his medical records were considered. Another option which was explored was that of care in a psychiatric hospital. There are psychiatric hospitals in Dubbo, Orange and Port Macquarie but nothing in Armidale. When the family looked into this option, it was apparent that Mr Moore would have to move away from his family and that he would be institutionalised. A psychiatric examination had been scheduled but the family did not follow through with this. Mrs Moore could not conceive of her husband being away, Mr Brian Moore stated.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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