Morgan-Marok and Defence Force Retirement and Death Benefits Authority

[2010] AATA 648

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 648

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5827

GENERAL ADMINISTRATIVE DIVISION		)
Re		Zdenka Morgan-Marok

Applicant

And Defence Force Retirement and Death Benefits Authority

Respondent

DECISION

Tribunal Senior Member A K Britton

Date27 August 2010

PlaceSydney

Decision The decision under review is affirmed.

....................[SGD]................

Senior Member

CATCHWORDS

DEFENCE – Defence force retirements and death benefits – spouse who survives deceased person – meaning of “marital relationship” – where parties divorced and maintained separate residences – argument that living arrangements dictated by special circumstances

Defence Force Retirement and Death Benefits Act 1973 (Cth) — ss 6A, 6B

REASONS FOR DECISION

27 August 2010 Senior Member A K Britton           

1.      Ms Zdenka Marok has made a claim for a spouse pension under the Defence Force Retirement and Death Benefits Act 1973 (Cth) (the Act). She claims to be the surviving spouse of Mr Charles Morgan, a former member of the Australian Defence Force who died in 2007. Section 38 of the Act provides that where a recipient member of the Defence Force Retirement and Death Benefits Scheme dies and is survived by a spouse, the spouse is entitled to a pension calculated in accordance with that provision.  Mr Morgan was a “recipient member” of the Scheme.

2.      Mr Morgan and Ms Marok married in 1986 and divorced two years later. Mr Morgan remarried in November 1994. That marriage was dissolved after four years. On Ms Marok’s account, she had not lived with Mr Morgan for 16 years before his death, and had had no contact with him in the ten months before his death.  She was not named as a beneficiary under his will.  She claims that he had told her that she would be entitled to his pension on his death.

3.      The Defence Force Retirement and Death Benefits Authority (the Authority), the respondent in these proceedings, decided that Ms Marok did not qualify for a spouse pension because she was not Mr Morgan’s “spouse” within the meaning of the Act at the time of his death.  Ms Marok now seeks review of that decision by the AAT.

4. Ms Marok’s eligibility for the claimed pension turns on whether she satisfies the definition of a “spouse who survives a deceased person” within the meaning of s 6B of the Act.

evidence 

5.      It is common ground that Mr Morgan and Ms Marok lived together for only a short period.  Ms Marok claims that they lived together from 1984 to 1988, and for three months in 2001. The Authority, on the other hand, contends that they last lived together in 1986.

6.      According to Ms Marok, the relationship continued despite the divorce — “essentially nothing changed as we still had our ‘Karma’ ”. She claimed that she did not enter into another relationship after the divorce. In a statement prepared for these proceedings dated 20 May 2009, Ms Marok claimed that after the divorce “we saw each other regularly — virtually every week and often several times a week”.  However, in cross-examination, she conceded that after the divorce she lost contact with Mr Morgan until 1991, when, on her account, they went to live together in the Blue Mountains of NSW. She claimed that that arrangement lasted for only a few months for a number of reasons — in particular, Mr Morgan’s psychiatric illness, smoking habits and insomnia. On her account, they then moved to separate residences in the Blue Mountains, which were a short distance from each other, and continued to live near each other until Mr Morgan’s death.

7.      Later in evidence, Ms Marok conceded that they again lost contact in the late 1990’s until a chance meeting at the University of Western Sydney. She claims that after that meeting, things resumed “as if nothing had happened”.

(i) divorce to 2002

8.      Ms Marok’s claim that she and Mr Morgan maintained close and regular contact after the divorce until 2002 is inconsistent with the documentary evidence, which includes:

(i).       A letter to the Authority dated 22 November 2007, in which she wrote,

“At around the end of 1988 Peter bought me a round the world air ticket. The plan was that he would join me later in Croatia or Sri Lanka but he wasn’t well enough to travel… I lost track of Peter after that because I didn’t know where he was. However in 2002 we renewed our relationship and had been talking and corresponding”. 

In oral evidence, Ms Marok explained that the reference to losing contact in 2002 had been a “mistake”, and that they had only been out of contact for four years.

(ii)       A letter to ComSuper in 1997 in which Ms Marok requested that the Authority forward a letter to Mr Morgan, “my ex-husband…because I don’t have his address”. 

In evidence, Ms Marok claimed that she when she wrote that letter she and Mr Morgan had only been out of contact for a short period — probably because she was overseas. A chronology of “overseas trips” prepared by Ms Marok and tendered in these proceedings, indicates that she had been living in Australia continuously for over five years when she wrote that letter.

(iii).     A letter to ComSuper in March 2003 in which Ms Marok described herself as Mr Morgan’s “deserted wife” and claimed: 

“Right now I do not know if my ex-husband is still alive because he wasn't well for a long time and he changed his address for several times and I myself went abroad, so I lost contact.”

In cross-examination, Ms Marok claimed that they had only been out of contact for a “short period”, and again probably because she was overseas. The chronology prepared by Ms Marok indicates that when she wrote that letter in 2003 she had been living in Australia for about three years. Later in evidence she claimed that the reason she wrote to ComSuper was because someone told her they had read in the paper that “Peter Morgan” was dead. She later conceded that it was not uncommon for her not to know where Mr Morgan lived as — by her account — he was often in hiding because of his psychiatric condition.

(iv).     A letter from Mr Morgan to Ms Marok dated 13 July 2003 in which he wrote: 

“Your b’day card took me by surprise – almost as big a surprise as hearing that you stayed six months at Puttaparthi (I’ve heard that very few Europeans visit these days)

…

Welcome back to “Aussie”…

Your WRITTEN English has improved greatly. ”

When questioned, Ms Marok said that the reference to “welcome back to Aussie” and the comment about her improvement in English did not indicate that she and Mr Morgan had fallen out of contact.  She claimed that Mr Morgan had assisted her in making a documentary throughout 2000 and 2001 and in completing a masters degree in filmmaking in the late nineties. 

(v).      A letter to ComSuper from Ms Marok after Mr Morgan’s death in which she wrote:

“I, Zdenka Marok was his third wife and the last one as far as I know…”

Documents tendered in these proceedings indicate that Mr Morgan remarried in Fiji in 1994. That marriage was dissolved in 1998.

She disagreed that this indicated that she and Mr Morgan had little contact around the time of his fourth marriage, and said that while he did not disclose the details of that marriage, they had discussed “the spirit of it”.

9.      Ms Marok relies on statements prepared by four friends and acquaintances in support of her claim that she maintained close and regular contact with Mr Morgan. Of these, only one relates to the period, 1988 to 2002. In a statement dated 8 March 2008, Ms Elisabeth Ferguson stated that: she had known Mr Morgan and Ms Marok for the past ten years; she and Ms Marok met in Sydney occasionally for lunch; Ms Marok was occasionally accompanied by Mr Morgan; and they last all had lunch together in early 2006.

10.     Ms Marok also relies on a documentary she produced in about 2000, which credited Mr Morgan as “Text Editor”, and carries this acknowledgement: 

“Special thanks to Peter C Morgan who inspired this work”.

11.     Ms Marok’s claim that she maintained close contact with Mr Morgan after the divorce is inconsistent with the evidence given by Mr Morgan’s daughter, Ms Catherine Morgan.  Ms Morgan testified that she had been in close and regular contact with her father from the time she moved to the Blue Mountains in the mid-1990’s until his death. Medical records produced in these proceedings reveals she had been her father’s carer since at least 2006 and acknowledged as his next of kin. Ms Morgan testified that she could not recall any occasion when she had seen her father in the company of Ms Marok, or he had mentioned her. 

(ii) 2002 to date of death

12.     In oral evidence, Ms Marok said that she was not in contact with Mr Morgan in the two periods she was overseas immediately before his death — October 2003 to June 2004, and November 2006 to June 2007. She said that in the period between her return from India in June 2004 and her departure for Croatia in November 2006, following the death of her mother, she saw Mr Morgan, at most, once a week. She claimed that during this interval they went to cafes, the library and various cultural events together. She claimed that her own health problems prevented her from seeing more of Mr Morgan during this period or taking an active role in his care.   

13.     According to Ms Marok, she did not speak to Mr Morgan in the period between her return from Croatia in June 2007 until the time of his death, but saw him from a distance from time to time. She said that a combination of factors, including dealing with the threat of eviction from the Department of Housing and their respective health problems, prevented her from seeing Mr Morgan during this period.  She further claimed that the day before his death, she took chicken soup to his home and became alarmed when she could not contact him.

14.     Plan to live together:    Ms Marok testified that when she and Mr Morgan first became involved, they exchanged promises of mutual care, and specifically promised that they would ensure that the other was not forced to move to a nursing home. She said that when it became apparent that Mr Morgan’s health was failing, they discussed his future and decided that they should move in together. Shortly before his death, Ms Marok advertised a “house swap” through a Department of Housing web site, on her account so that she could obtain accommodation that was suitable for them both to live in.  Mr Morgan died the day the advertisement appeared on the internet.

15.     In cross-examination, Ms Marok conceded that she had not discussed the proposed move with Mr Morgan, and indeed had not spoken to him until some time before leaving for Croatia in November 2006.

16.     Findings: Ms Marok’s claim that she had been in regular contact with Mr Morgan since the divorce until of his death is internally inconsistent, contradicted by contemporary records, and inconsistent with the testimony given by Mr Morgan’s daughter. The explanations provided by Ms Marok for the apparent inconsistencies between the documentary evidence and her claim of regular contact with Mr Morgan from 1991 until 2002, are in my view, simply implausible.  It seems to me more probable than not that Ms Marok had no contact with Mr Morgan throughout the period, 1988 to 2003, except possibly for a brief period in 1999 and 2000, and irregular contact from June 2004 to November 2006. 

statutory definition of spouse

17. Section 6B of the Act defines a “spouse who survives a deceased person” to mean:

(1)       In this section:

deceased person means a person who was, at the time of his or her death, a contributing member, a recipient member or a person in respect of whom deferred benefits were applicable.

(2)       For the purposes of this Act, a person is a spouse who survives a deceased person if:

(a)       the person had a marital relationship with the deceased person at the time of the death of the deceased person (the death); and

(b)       in the case of a deceased person who was a recipient member at the time of the death:

(i)        the marital relationship began before the recipient member became a recipient member; or

(ii)       the marital relationship began after the recipient member became a recipient member but before the recipient member reached 60; or

(iii)      in the case of neither subparagraph (i) nor (ii) applying—the marital relationship had continued for a period of at least 5 years up to the time of the death.

(3)       In spite of subsection (2), a person is taken to be a spouse who survives a deceased person if:

(a)       the person had previously had a marital relationship with the deceased person; and

(b)       the person did not, at the time of the death, have a marital relationship with the deceased person but was legally married to the deceased person; and

(c)       in the case of a marital relationship that began after the deceased person became a recipient member and reached 60—the relationship began at least 5 years before the deceased person’s death; and

(d)       in the Authority’s opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.6A  Marital relationship

18. Section 6A defines a marital relationship to mean:

(1)       For the purposes of this Act, a person had a marital relationship with another person at a particular time if the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis at that time.

(2)       For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person’s husband or wife on a permanent and bona fide domestic basis at a particular time only if:

(a)       the person had been living with that other person as that other person’s husband or wife for a continuous period of at least 3 years up to that time; or

(b)       the person had been living with that other person as that other person’s husband or wife for a continuous period of less than 3 years up to that time and the Authority, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis at that time;

whether or not the person was legally married to that other person.

(3)       For the purposes of this Act, a marital relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).

(4)       For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:

(a)       the person was wholly or substantially dependent on that other person at the time;

(b)       the persons were legally married to each other at the time;

(c)       the persons had a child who was:

(i)        born of the relationship between the persons; or

(ii)adopted by the persons during the period of the relationship;

(d)       the persons jointly owned a home which was their usual residence.

(5)       For the purposes of this section, a person is taken to be living with another person if the Authority is satisfied that the person would have been living with that other person except for a period of:

(a)       temporary absence; or

(b)       absence because of special circumstances (for example, absence because of the person’s illness or infirmity or a posting of the person).

is ms marok “a spouse who survives a deceased person”?

19. To fall within the definition of a “spouse who survives a deceased person” Ms Marok must satisfy either s 6B(2) or s 6B(3) of the Act.

20. One of the criteria of s 6B(3) is that the person, “at the time of the death… was legally married to the deceased person”: s 6B(3)(b) of the Act. As Ms Marok and Mr Morgan were divorced at the time of his death, s 6B(3) is not satisfied.

does ms marok satisfy s 6b(2)?

21. Section 6B(2) will be satisfied if, among other things, Ms Marok had a “marital relationship” with Mr Morgan at the time of his death: s 6B(2)(a). Ms Marok will be regarded as having had a “marital relationship” with Mr Morgan at the time of his death if she ordinarily lived with him as his wife on a permanent and bona fide domestic basis at that time: s 6A(1). She will be regarded as “ordinarily living” with Mr Morgan as his wife on a permanent and bona fide domestic basis at the time of his death only if she had been living with Mr Morgan as his wife:

(i) For a continuous period of at least three years up to the time of his death: s 6A(2)(a); or

(ii) For a continuous period of less than three years up to his death and ordinarily lived with him as his wife on a permanent and bona fide domestic basis at that time: s 6A(2)(b)

22. Providing Ms Marok fulfils one of the above criteria, she will regarded as “ordinarily living” with Mr Morgan as his wife on a permanent and bona fide domestic basis at the time of his death, notwithstanding the fact that they were not legally married at that time: s 6A(2).

23. Ms Marok did not live with Mr Morgan at any time in the three years immediately preceding his death. Therefore s 6A(2)(a) is not satisfied.

24. Nor is s 6A(2)(b) satisfied because a “nil period”, in my opinion, could not be said to constitute a “continuous period of less than three years”. This point was not addressed by either party and, in case I am wrong, I will consider whether Ms Marok meets the second element of s 6A(2)(b), namely that she “ordinarily lived with [Mr Morgan] as his wife on a permanent and bona fide domestic basis” at the time of his death. Section 6A(4) sets out a non-exhaustive list of factors that may be relevant to that assessment:

25.     Wholly or substantially dependent   At the time of Mr Morgan’s death, Ms Marok was receiving the disability support pension and living in public housing.   She gave evidence that Mr Morgan assisted her from time to time with overseas travel and various expenses, including the funding of a documentary.  From November 2006 until his death, she had no direct contact with Mr Morgan and therefore could not have received any financial support throughout this period. In my opinion, she was not wholly or substantially financially dependent on Mr Morgan at the time of his death, and had not been since the time of the divorce.

26.     Nor in my opinion could it reasonably be argued, given the brief time they spent with each other, that she was otherwise dependent on Mr Morgan. 

27.     Legally married        As stated, the parties had not been legally married for over twenty years at the time of Mr Morgan’s death.

28.     Any child of the relationship          There was no child born of the relationship between Mr Morgan and Ms Marok; nor did they adopt a child.  Ms Marok testified that Mr Morgan had been close to her daughter and provided her with financial assistance from time to time. In unsworn statements prepared for these proceedings, Ms Marok’s daughter, Ms Carmen Pefanis, described Mr Morgan as having been a “supportive father figure throughout her studies”. Among other things, she stated that he had supported her throughout a “turbulent young adulthood” as her mother often travelled.  Ms Pefanis makes no mention of any contact with Mr Morgan from about the early 1990’s.

29.     Jointly owned a home which was their usual residence:          Mr Morgan and Ms Marok had never jointly owned a home.

30.     The above factors in my opinion strongly weigh against a finding that Ms Marok ordinarily lived with Mr Morgan as his wife on a permanent and bona fide domestic basis.  Other factors which weigh against that finding include the long period Mr Morgan and Ms Marok had lived apart in separate households, and the relatively short period they had lived together; the significant periods throughout which they had no contact; and the absence of any evidence that either took any role in the care of the other. Indeed, apart from Ms Marok’s claim that on the day before Mr Morgan’s death she made him chicken soup, there is no reliable evidence that they shared in, or undertook for the other, any domestic task after their divorce in 1986.  Even if accepted that, as claimed, Mr Morgan gave Ms Marok money from time to time; assisted her in her studies and the making of a documentary; accompanied her on outings throughout the period June 2004 to November 2006; and that the two had a special “spiritual bond”, this in my view does not support a finding that she ordinarily lived with Mr Morgan as his wife on a permanent and bona fide domestic basis.  At best, it establishes that after the divorce, maintained occasional contact and provided each other with some support. 

31.     I am not satisfied that Ms Marok ordinarily lived with Mr Morgan as his wife on a permanent and bona fide domestic basis at the time of his death.

Does s 6A(5) apply?

32.     Ms Marok will be taken as “living with” Mr Morgan if I am satisfied that she would have been living with Mr Morgan except for a period of:

(a)       temporary absence; or

(b)       absence because of special circumstances (for example, absence because of the person’s illness or infirmity or a posting of the person).

Period of temporary residence?  

33.     It is properly conceded on behalf of Ms Marok that, given the length of time she lived apart from Mr Morgan — on her account 16 years — the three year period they lived apart immediately before his death could not be characterised as a “temporary absence”. 

Absence because of special circumstances? 

34.     According to Ms Marok, she and Mr Morgan had been in a marriage-like relationship since their relationship started in 1983 until his death in 2007. She contends that while unconventional, their relationship was close and enduring. She further asserts that but for special circumstances — namely Mr Morgan’s severe psychiatric illness, their different body clocks, her own health problems and her mother’s death — they would have lived together .

35.     In assessing whether Ms Marok and Mr Morgan would have been living with each other except for a “period of absence because of special circumstances”, it is necessary to consider not only the three year period immediately before his death but the entire period they lived apart. This is because the reasons they lived apart from the time of the divorce might also explain why they were living apart in the period before Mr Morgan’s death. 

36.     Even if accepted that in the three years prior to Mr Morgan’s death, he and Ms Marok were prevented from living together because of her health problems and family commitments which required travel to Croatia, this does not explain why, by that time, the couple had lived apart for two decades. 

37.     While it is uncontroversial that Mr Morgan suffered from a psychiatric illness, I am not satisfied, as I understand Ms Marok to suggest, that they would have been living with each other but for that illness. This is not an example of a relationship where the parties were forced to live apart for a period because of illness but otherwise maintained a marital relationship. On any objective measure, the marital relationship came to an end at around the time of the divorce.  It may be that Mr Morgan’s condition played a part in the decision to divorce and live apart, but this does not establish that they would have been living together in either the three years before his death, or for the period following the divorce, but for his psychiatric condition.  Even if it is accepted that following the divorce they continued to care for each other and maintained a close spiritual relationship, this does not establish that they would have been living together except for a period of absence because of Mr Morgan’s illness.

38.     Nor am I persuaded that they would have been living with each other except for absence because of any of the other factors relied on by Ms Marok as constituting special circumstances — Mr Morgan’s smoking habit, or their different body clocks and lifestyles.

39. I am not satisfied that Mr Morgan and Ms Marok would have been living with each other in the three years before his death, except for any of the circumstances relied on by Ms Marok, taken either separately or in combination. For these reasons, I am not persuaded that Ms Marok could be taken to be living with Mr Morgan in the three years immediately before his death by the operation of s 6A(5).

40. It follows that Ms Marok did not have a marital relationship with Mr Morgan at the time of his death, and s 6B(2)(a) is not satisfied. Accordingly Ms Marok is not a “spouse who survives a deceased person” for the purpose of s 6B(2) of the Act.

Promise made by Mr Morgan

41.     In these proceedings, Ms Marok emphasised the promise she claimed was made to her by Mr Morgan that upon his death she would be entitled to receive his pension. Even if accepted, it does not establish that that she meets the definition of a “spouse who survives a deceased person” within the meaning of the Act.  Pension eligibility under the Act is determined by reference to statutory criteria, and not by reference to the wishes or preference of the recipient member. 

Summary

42.     As I am not satisfied that Ms Marok is a “spouse who survives a deceased person” within the meaning of the Act, I must affirm the decision under review.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ......................................[SGD]..................................
  Associate to Senior Member Britton

Date of Hearing:  18 August 2010
Date of Decision:  27 August 2010
Solicitor for the Applicant:         Gnana-Karan Solicitors
Counsel for the Respondent:    Mr D O'Donovan
Solicitor for the Respondent:     Australian Government Solicitor