Naur and Repatriation Commission (Veterans' entitlements)

[2024] AATA 2377

Naur and Repatriation Commission (Veterans' entitlements) [2024] AATA 2377 (11 July 2024)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2022/10043

Re:Anna Naur

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:11 July 2024

Place:Adelaide

The Tribunal affirms the Reviewable Decision

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Senior Member George

CATCHWORDS

VETERANS – partner service pension – whether applicant was in a de facto relationship with the Veteran at the time of his death – consideration of circumstances of the relationship – decision under review affirmed.

LEGISLATION

Veterans Entitlement Act 1986 (Cth)

REASONS FOR DECISION

Senior Member George

11 July 2024

1. Ms Anna Naur made an application for a Partner Service Pension (“PSP”) on 12 February 2022 in respect of the late Mr Rodney Charles Ely. On 4 August 2022, the claim for a PSP was denied on the basis that Ms Naur was not in a de facto relationship with Mr Ely at the time of his death.

2. Ms Naur sought review of the decision dated 4 August 2022 and it was affirmed on 21 October 2022. This is the Reviewable Decision.[1]

   [1] Exhibit J1, T-Documents, T80, Determination and Statement of Reasons.

3. The issues for the Tribunal to determine are:

   (a)whether Ms Naur is ineligible for PSP under s 38(1B) of the Veterans Entitlement Act 1986 (Cth) (“the Act”); and,

   (b)whether Ms Naur was in a de facto relationship with Mr Ely at the time of his death.

4. For the following reasons, the Tribunal has decided the affirm the Reviewable Decision.

   MATERIAL FACTS

5. The facts have been set out in detail in the Respondent’s Statement of Facts, Issues and contentions. They are substantially uncontentious. Having examined this material and heard the oral evidence of Ms Naur and Mr Stuart Campbell, the material facts in this matter are summarised in the following paragraphs.

6. Mr Ely enlisted in the Australian Army in March 1964. He served in Vietnam between 1967 and 1968 and was discharged in March 1986.

7. Ms Naur was born in July 1977 in Papua New Guinea. She met Mr Ely in Papua New Guinea in 1994 and they married in Australia in 1999.  

8. In 2003, Mr Ely applied for the Disability Pension.

9. Ms Naur has a child with a former partner. Mr Ely and Ms Naur adopted this child in September 2005 by an order of the National Court of Justice of Papua New Guinea.

10. Mr Ely and Ms Naur applied for a Service Pension indicating they were married and residing together at an address in Townsville. The claim was granted in October 2005.

11. In May 2009, Mr Ely informed the Department of Veterans’ Affairs (“the Department”) that he had separated from Ms Naur. They completed separation forms and noted that their prospects of reconciliation were poor.

12. In June 2009, Mr Ely and Ms Naur completed a statement of circumstances form noting that they had separated in May 2009, they resided at different addresses, they jointly owned a Nissan X-Trail, and they did not disclose any joint bank accounts.

13. In August 2009, Mr Ely completed a couples living separately form,[2] indicating the following:

    [2] Exhibit J1, T-Documents, T28, Statement of Relationship – Couples living separately due to illness.

    (a)Mr Ely and Ms Naur resided at different addresses;

    (b)Mr Ely was unable to live with Ms Naur due to his post-traumatic stress disorder and the breakdown of their relationship;

    (c)Mr Ely and Ms Naur did not have any joint bank accounts;

    (d)Mr Ely and Ms Naur had joint ownership over a house, and they were both liable for the mortgage;

    (e)Ms Naur was the beneficiary of Mr Ely’s superannuation;

    (f)Mr Ely was paying for Ms Naur’s utilities and Pay TV for her house;

    (g)Mr Ely and Ms Naur saw each other daily or weekly but did not engage in any joint social activities;

    (h)There was no sexual relationship between Mr Ely and Ms Naur;

    (i)My Ely considered his relationship with Ms Naur would continue as friends;

    (j)Mr Ely saw the relationship as one that had ended due to separation; and

    (k)Mr Ely described his relationship with Ms Naur as having deteriorated due to his medication and behaviour and their age differences.

14. By March 2012, Mr Ely no longer had a share of the Nissan X-Trail, which was now with Ms Naur and he transferred his interest in their home to Ms Naur.

15. In August 2013, the Federal Circuit Court made an order for the divorce of Mr Ely and Ms Naur with effect from 7 September 2013.

16. On 17 February 2015, Ms Naur made a claim for PSP indicating the following:

    (a)Ms Naur was receiving a carers payment of $975 a fortnight;

    (b)Ms Naur was in a de facto relationship and had been living with Mr Ely in a retirement village since 10 February 2015;

    (c)Ms Naur had no dependent children under 16 years of age;

    (d)Mr Ely covered the cost of the rent at $414 per month;

    (e)Mr Ely owned a Holden Commodore; and

    (f)The home Ms Naur owned was in the process of being sold as it had been repossessed by the bank.

17. On 20 April 2016, Ms Naur made a claim for PSP. This was denied on 27 July 2016 on the basis that Mr Ely’s and Ms Naur’s combined income exceeded the threshold.

18. On 8 August 2016, Mr Ely informed the Department of the following:

    “You advised me in your letter dated 27 July 2016 that my service pension had been reduced to nil. You also advised me that I had an overpayment of $2,810.32.

    When I went through the process of claiming [Ms Naur] as my de facto partner, nobody advised me of the consequences of such action. The relationship was non-sexual and basically saw her acting as my carer. Centrelink had rejected her claim for a Carer Payment. The result of this process has been that I have been technically paying for a carer by losing my service pension and providing rent and utilities free accommodation for her.

    I, therefore, with immediate effect, request to revert to my single status, and have my service pension reinstated. I further request that consideration be given to waiving the overpayment, due to the non-disclosure of the consequences of the claim.

    It seems to me, that my mental issues and alcohol dependence do not entitle me to a part-time carer, when without it, I may be a danger to myself and others.”[3]

    [3] Exhibit R2, T-Documents, T42,

19. An authorised review officer affirmed the decision to treat Mr Ely and Ms Naur as a couple on 13 September 2016.

20. On 27 September 2016, Geelong RSL notified the Department that Ms Naur had vacated Mr Ely’s property and that “any relationship Mr Ely had with [Ms Naur] (his personal carer) is now terminated.”[4]

    [4] Exhibit R2, T-Documents, T45

21. On 27 June 2018, Ms Naur made a claim to Centrelink for Carer Payment as a carer of Mr Ely.

22. On 24 July 2018, Mr Ely completed a Centrelink Separated Under One Roof form indicating that he and Ms Naur separated on 13 June 2013 and that Ms Naur was living with him until she found her own place.

23. On 20 August 2018, Ms Naur completed a Centrelink Separated Under One Roof form indicating that she did not have a permanent address, she and Mr Ely separated on 6 August 2013, and she intended to live with Mr Ely temporarily for 2-6 weeks.

24. On 23 October 2019, an intervention order was served on Ms Naur in relation to an incident that occurred on 15 or 16 October 2019. The protected person was not named but was identified as a 79-year-old male.

25. On 18 May 2020, Ms Naur made a claim for PSP noting the following:

    (a)Ms Naur had been in a de facto relationship since 7 June 2015;

    (b)Ms Naur and/or Mr Ely had dependent children aged up to 22 years; and

    (c)Ms Naur had resided with Mr Ely since 7 May 2018.[5]

    [5] Exhibit J1, T-Documents T54

26. On 3 July 2020, Ms Naur completed a form to act as Mr Ely’s representative indicating that he was her husband, they reside together, and she was involuntarily appointed as the Veteran’s representative.[6]

    [6] Exhibit J1, T-Documents, T56

27. On 10 July 2020, Ms Naur completed a Centrelink Carer Payment Review for the care she provided to Mr Ely. On the same date, Ms Naur completed a Centrelink Carer Payment Medical Report and indicated she was not claiming a Carer Payment.

28. On 30 October 2020, Ms Naur’s claim for PSP was denied as she had failed to satisfy the delegate of all matters relevant to her claim.

29. On 18 November 2020, a family violence report was made by police noting the following:

    (a)Ms Naur was the perpetrator;

    (b)The affected family member was a 79 year old male, which the Tribunal infers to be Mr Ely;

    (c)Ms Naur and Mr Ely were a divorced couple;

    (d)Mr Ely engaged an elder abuse support network who asked the police to conduct a welfare check;

    (e)Mr Ely was observed to be bedridden, underweight, and wearing an adult nappy which appeared to be full; and

    (f)Mr Ely informed police he was happy with how he was being treated by Ms Naur and there had been disputes between Ms Naur and his children over should have power over his affairs.

30. On 3 December 2020, the Department sought clarification from Ms Naur regarding her reconciliation with Mr Ely. Ms Naur replied by identifying Mr Ely as her husband.

31. Mr Ely passed away on 24 December 2020.

32. In a letter dated 5 January 2021, Ms Robyn Van Ingen, a family consultant stated that Mr Ely had been her client from August 2020 to December 2020. She had concerns for Mr Ely’s well-being and the care provided by Ms Naur, who she described as Mr Ely’s “live-in carer”.

33. On 12 February 2022, Ms Naur made a claim for PSP. This was denied and Ms Naur requested a reconsideration on 4 August 2022 noting she had been in a de facto relationship with Mr Ely for nearly 7 years before he passed away. This decision was affirmed on 21 October 2022.

34. Mr Stuart Campbell gave evidence in these proceedings. He was under the impression Mr Ely and Ms Naur were married prior to Mr Ely’s death. Mr Campbell did not see Mr Ely and Ms Naur socialise, however he gave evidence that Ms Naur was the object of racist comments from neighbourhood residents.

35. The Tribunal notes that it has several emails between Ms Naur and Mr Ely’s family. Mr Ely’s family did not give evidence at the hearing, and it is unclear if they were aware of proceedings. Given the sensitive nature of the contents of these emails, the Tribunal will not set out their contents. It is sufficient to note that there was a certain hostility between Ms Naur and Mr Ely’s family.

36. The Tribunal also notes that it has various ANZ Bank Records with large deposit amounts and immediate withdrawals. For reasons that were indicated during the hearing, the Tribunal does not regard these records as being relevant to these proceedings.

    IS MS NAUR INELIGIBLE FOR PSP?

37. For a person to be eligible for PSP, a person must satisfy the requirements under s 38(1) of the Act. Relevantly, they must have a dependant child when making a claim for PSP and have reached the qualifying age.

38. Section 5Q of the VEA defined qualifying age as:

    "qualifying age" for a person means:

    (a)  if the person is a veteran--the pension age for that person; or

    (b)  if the person is not a veteran--the age that would be the pension age for that person if he or she were a veteran.

39. According to s 5QA of the Act, the pension age of a female veteran born after 1 January 1954 is when she turns 60 years of age.

40. At the time of her claim for PSP, Ms Naur was 44 years of age. During her oral evidence, she confirmed she did not have a dependent child at the time of making her claim. Ms Naur, therefore, is not eligible for PSP by reasons of s 38(1B) of the Act.

    WAS MS NAUR IN A DE FACTO RELATIONSHIP AT THE TIME OF MR ELY’S DEATH?

41. Section 5E(1) of the Act defines a widow as follows:

    “widow" means:

    (a)  a woman who was the partner of a person immediately before the person died; or

    (b)  a woman who was legally married to a person, but living separately and apart from the person on a permanent basis, immediately before the person died.

42. Mr Ely and Ms Naur legally divorced in September 2016. The Respondent contends that Mr Ely and Ms Naur were not in a de facto relationship at the time of Mr Ely’s death. Ms Naur contends otherwise.

43. Section 11A of the Act contains considerations to determine if two people are a member of the couple. Having regard to that s 11A of the Act, and the evidence before the Tribunal, the Tribunal notes the following at the time of Mr Ely’s death:

    (a)Mr Ely and Ms Naur did not jointly hold any real estate or other major assets;

    (b)Mr Ely and Ms Naur did not jointly hold any bank accounts;

    (c)Mr Stuart Campbell gave evidence in these proceedings that he was under the impression Mr Ely and Ms Naur were married prior to Mr Ely’s death;

    (d)Mr Campbell further stated that Mr Ely and Ms Naur did not socialise together, in part due to racist remarks people in the village made behind Ms Naur’s back;

    (e)There was no sexual relationship between Mr Ely and Ms Naur; and

    (f)Ms Van Ingen described Ms Naur as Mr Ely’s live-in carer from at least August 2020.

44. The uncertain nature of the commitment between Mr Ely and Ms Naur in the period immediately prior to Mr Ely’s death weighs heavily against a positive finding that the parties were in de facto relationship. At the time of their divorce, Mr Ely and Ms Naur did not share a commitment by both parties to a life together. Notwithstanding declarations to Centrelink to the contrary, Ms Naur may have subsequently regarded herself as being in a marriage-like relationship. However, Mr Ely did not. To Mr Ely, Ms Naur was a live-in carer. There was clearly a lack of mutuality.

45. The racist remarks that Ms Naur endured, which were described by Mr Campbell, causes the Tribunal to put little weight on the social aspects of the relationship in determining its nature. Also, given the age and health of Mr Ely, the Tribunal also places little weight on the sexual aspects of the relationship.

46. Although the nature of the household weighs slightly in favour of a finding that Mr Ely and Ms Naur were in a de facto relationship, the lack of financial aspects of the relationship more than counterbalance such a finding.

47. Considering the evidence wholistically, the Tribunal is not satisfied that Mr Ely and Ms Naur were living together in a de facto at the time of, or immediately prior to, Mr Ely’s death.

48. Accordingly, the Tribunal must affirm the Reviewable Decision.

    DECISION

49. The Tribunal affirms the Reviewable Decision.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

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Date of Decision:	11 July 2024
Date of Hearing:	20 May 2024
Representation for the Applicant:	Self-represented
Solicitor for the Respondent:	Ms Kellie Latta Sparke Helmore

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED	DATE TENDERED
J1	Tender Bundle	R	N/A	17/5/2024	20/5/2024
R1	List of Authorities		N/A	16/5/2024
R2	Respondent’s Statement of Facts, Issues and Contentions inc. Attachments (5/4/2024)		5/4/2024	9/4/2024

ANNEXURE A – Exhibit Register