Murphy and Repatriation Commission (Veterans' entitlements)

[2017] AATA 2286

Murphy and Repatriation Commission (Veterans' entitlements) [2017] AATA 2286 (22 November 2017)

Division:Veterans' Appeals Division

File Numbers:         2017/0704

2017/0705

Re:Susan Murphy

Bruce Murphy

APPLICANTS

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:22 November 2017

Place:Sydney

The Tribunal affirms the decision under review dated 25 November 2016. 

.......................[sgd].................................................

Mrs J C Kelly, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – rate of service pension – Applicants are legally married - whether Applicants are living separately and apart on a permanent basis - decision affirmed

LEGISLATION

Veterans Entitlement Act 1986 (Cth), ss 5E, 11A

CASES

Steward and Repatriation Commission [2008] AATA 714

SECONDARY MATERIALS

Department of Veterans’ Affairs, Compensation and Support Policy Library

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

22 November 2017

Decision under review

1. The Applicants, Susan Murphy and Bruce Murphy, seek review of a decision of the Repatriation Commission (the Respondent) dated 25 November 2016, which affirmed a determination dated 14 September 2016. That determination found that for the purpose of calculating the rate of service pension payable, the Applicants are members of a couple as defined in s 5E(2)(a) of the Veterans Entitlement Act 1986 (the Act).

   Background

2. On 17 November 1997, the Applicants, a married couple, were granted a service pension with effect from 9 October 1997. The pension was calculated on the basis that they were members of a couple.

3. On 3 November 2010, the Applicants notified the Respondent that they had separated on 1 October 2010 and were living in separate properties in rural Victoria. The pension rate was adjusted so that each of the Applicants was paid at the single rate.

4. On 25 June 2011, Mrs Murphy advised the respondent that she had moved back to the property where her husband resided due to her poor health. She stated that her husband would be caring for her and that she was going to rent out their property where she had been living. The Applicants were considered to be “separated under one roof” and each of them continued to receive the pension at the single rate.

5. A delegate of the Commission discussed the Applicants’ circumstances with Mrs Murphy on 14 September 2016. The delegate recorded that the Applicants had been living together since January 2016 and were joint owners of two properties, although one was being sold. The delegate recorded that the couple were moving to the mid-north coast of New South Wales, where they had entered a rental agreement together for a property and that Mr Murphy would be moving there to join Mrs Murphy. The delegate decided that the Applicants were in a “partnered situation” and were not separated and living under one roof. Consequently the pension rate was adjusted accordingly.

6. On 22 September 2016, Mrs Murphy wrote a letter requesting the review of that decision.  On 6 October 2016, Mrs Murphy wrote a letter advising that the Applicants had sold one of their properties in rural Victoria and had purchased a house on the New South Wales north coast.  The reviewable decision was made on 25 November 2016.

   The law

7. Relevantly, s 5E(2)(a) of the Act provides that a person is a member of a couple for the purposes of the act if:

   the person is legally married to another person and is not living separately and apart from the other person on a permanent basis; or…

8. Section 9.3.3 of the Compensation and Support Policy Library sets out matters to be considered to determine whether people are “Not a Member of a Couple” in relation to separation under one roof.  Those factors include the factors which indicate that a de facto relationship exists as described in s 11A of the Act. 

9. Guidance as to how that task is to be undertaken is set out in Steward and Repatriation Commission [2008] AATA 714.

   The issue for determination

10. The Applicants are legally married.  The question for determination is whether they are living separately and apart on a permanent basis.

    The evidence

11. In coming to its decision, the Tribunal has taken into account the ‘T documents’, that is, the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, and the oral evidence Mrs Murphy gave at the hearing.

    Consideration

12. The Tribunal found Mrs Murphy to be a straight-forward and credible witness.  She does not understand why the rate of pension has been changed because she believes that the relationship between the parties is as it has been for years since they were each granted the pension a the single rate.  

13. Mrs Murphy does not dispute that she and Mr Murphy live at the one address, but claimed that Mr Murphy lives in the garage of the premises.  She said that they both have a bedroom and bathroom in the house and that she does not allow him in the lounge room.  She said that they do not like living together and are happier when they do not. She said that a doctor told Mr Murphy in the 1980s that he had brain damage and that Mr Murphy does not relate to doctors, and so she has to take him because there is nobody else to do so. She said that she had looked into buying a cabin in a nearby caravan park but cannot get a loan.  She also said that they will have to wait and see if Mr Murphy has cancer.

14. The Tribunal accepts that the Applicants have not shared a bedroom or slept together for at least 19 years.  However, her evidence shows that she has a strong commitment to Mr Murphy and that he has a commitment to her.

15. In her letter received by the Respondent on 22 September 2016, Mrs Murphy set out the reasons she left Mr Murphy in about 1995, and that she returned to him for about a year until he was returned to hospital for four months. However Mr Murphy continued to drink which was a problem in their marriage. She respects Mr Murphy for how hard he worked in their early years to secure their financial circumstances. He has always given her the money to handle.  In 2007 Mr Murphy was treated very aggressively for cancer. She supported him throughout that treatment but in 2013 she had had enough of his drinking and made him move out. He went to live with their daughter on their rural Victorian property and they sold their home. She rented a flat in the nearby town but got sick of renting and so they bought a unit there.

16. Mrs Murphy wrote that in the past four years all she has done is drive Mr Murphy to see his specialists because he is unable to. In 2015 he was hospitalised five times with pneumonia and is very ill. In January 2016 she made him come and live with her after he was fitted with a peg feeding tube. She wrote that Mr Murphy can still eat some food but it has to be cooked just right. She stated that, as his wife, she feels it is her responsibility to care for him after everything he has been through; he deserves that. Mr Murphy was advised to move to a warmer place. They chose the mid-north coast of New South Wales because all the specialists he has to go to are available there. She listed three sorts of specialists Mr Murphy consults regularly. At first they purchased a house on the mid-North Coast but as of the date of the hearing, that was sold and they are currently renting.

17. As of 22 September 2016 Mr Murphy was away for a month for them to have a break. She stated that she intended to keep looking after him as long as he lives because she has great respect for him. She is also not very well.  

18. Mrs Murphy’s view is:  “So really all our marriage is based on is caring for each other due to illness”. She wrote that the only thing that they do together is get the groceries and that their only common interests are their children and grandchildren. She told the Tribunal that they had cared for their seriously disabled son from 2000 until he obtained independent housing and care in 2009.  She said that he will visit them for ten weeks which will require a lot of work by both the Applicants.  

19. As of the date of hearing, Mrs Murphy said that their circumstances were as follows:

    ·She had taken over the cooking for both of them and does the washing for both of them.

    ·Because of a medical condition she suffers, Mr Murphy vacuums and mops, including vacuuming her bedroom. Each does their own dishes. Mr Murphy cleans up after the dog.

    ·They have entered a lease in both their names for their current home. The first lease she had entered into when she moved to the mid-north coast of New South Wales was only in her name.

    ·They jointly own a property in Victoria which they have sold to their daughter on vendor terms which have not yet been paid. They are the beneficiaries of each other’s wills.

    ·They have joint bank accounts.

    ·They share household expenses.

    ·Mrs Murphy attends to management of finances and organisational matters for both of them.

    ·When possible, they have not shared a bathroom since 1995.

    ·Mr Murphy took Mrs Murphy to emergency earlier this year when she was very ill.

20. Mrs Murphy told the Tribunal that Mr Murphy lived in a relocatable home on their rural property in Victoria from 2013 until 2016 when the peg-feeding tube was inserted.  Their daughter lived there then as she does now.   He also has a caravan which she said they used when they need to separate.  The caravan has been at Mr Murphy’s brother’s place in rural northern New South Wales since April 2017.  Mr Murphy spent a month there in April.  

21. Mrs Murphy said that they had taken no steps towards divorcing and have no intention of doing so. She repeated that she has a duty to care for Mr Murphy.  She wrote in her letter of 22 September 2016 that if she does not look after Mr Murphy, who will?

    Conclusion

22. Taking into account the provisions of s 11A of the Act and s 9.3.3 of the Compensation and Support Policy Library the Tribunal finds on the evidence that Mr and Mrs Murphy are members of a couple.  They moved together to a warmer climate for the sake of Mr Murphy’s health.  They own a property together, are jointly leasing a property, are beneficiaries of each other’s will, have a join bank account, Mrs Murphy manages the finances for them both, they shop for groceries together, and carry out household tasks that benefit each other.  They are not committed to each romantically or sexually, but Mrs Murphy in particular has a strong commitment to care for Mr Murphy.  On the evidence, he has assisted her when she has suffered illness.  Mr Murphy’s health concerns, particularly since 2016, dominate their lives.  Mrs Murphy has also had serious health issues.

    Decision

23. The Tribunal affirms the decision under review dated 25 November 2016.  

I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.............................[sgd]...........................................

Associate

Dated: 22 November 2017

Date of hearing:	10 July 2017
Applicants:	In person
Solicitors for the Respondent:	Ms E Baggett, Moray & Agnew Lawyers