Osmond and Repatriation Commission (Veterans' entitlements) - [2021] AATA 851

Osmond and Repatriation Commission (Veterans' entitlements) [2021] AATA 851 (9 April 2021)
Division:VETERANS' APPEALS DIVISION
File Number(s):2019/6633
Re:Megan Alicia Osmond
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Member Lt-Col R Ormston
Date:9 April 2021
Place:Adelaide

The Tribunal affirms the decision under review.
......................[Sgnd].....................................
Senior Member Dr N A Manetta
Catchwords
VETERANS' AFFAIRS – war widow’s pension – dependant – definition of partner – definition of member of a couple – whether applicant and former husband were living together as a de facto couple after their divorce – held they were not - decision under review affirmed.
Legislation
Veterans' Entitlements Act 1986 ss 5E(1), 5E(2)(b), 5E(3), 11(1), 11A, 13(2)
Secondary Materials
Jenkins v Repatriation Commission [1999] FCA 269
Pelka v S,DFCS (2006) 151 FCR 546
REASONS FOR DECISION
Senior Member Dr N A Manetta
Member Lt-Col R Ormston
INTRODUCTION

The applicant, Ms Megan Alicia Osmond, was married to Mr Jamie Paul Osmond for some 23 years before their divorce in December 2014. Mr Osmond served in the Royal Australian Air Force (RAAF) from 1986 to 2007 and was subsequently in receipt of a disability pension for Post Traumatic Stress Disorder (‘PTSD’). This was paid to him at the Special Rate by the respondent, the Repatriation Commission.
Mr Osmond died in a vehicle accident in July 2018. In November 2018, Ms Osmond lodged a claim for a war widow’s pension, which was refused by a delegate of the Commission, on the basis that she had ceased to be a dependant of Mr Osmond from the time of her divorce some years earlier, in 2014.
On 15 January 2019, Ms Osmond requested a reconsideration of the determination. On 27 September 2019, the Veterans’ Review Board (‘VRB’) affirmed the decision of the Repatriation Commission. On 11 October 2019, the applicant sought a review by this Tribunal of the VRB’s decision, giving rise to these proceedings.
THE ISSUES
The decision under review is that the applicant was not entitled to a war widow’s pension under the Veterans’ Entitlement Act 1986 (the ‘Act’) because she was not a dependant of the veteran at the date of his death.
The issue, therefore, is whether Ms Osmond falls within one of the categories of ‘dependant’ in s 11(1) of the Act and, specifically, whether she was ‘the partner’ of the veteran at the date of his death. The critical question, which we have answered adversely to Ms Osmond, is whether at the time of Mr Osmond’s death in 2018, she was living with him in a de facto relationship. Ms Osmond maintains she was, notwithstanding the divorce in 2014.
THE LEGAL FRAMEWORK
We now set out the chain of provisions that are relevant to our review. First, s 13(2) of the Act relevantly provides as follows:
(2) Where:
(a) a veteran has died;
(b) the death of the veteran was not war‑caused; and
(c) the veteran was, immediately before the veteran’s death:
(i) a veteran to whom subsection…

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.

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Details

Case: [2021] AATA 851
Decision Date: 9 April 2021

CaseChat Overview and Summary

This matter concerned an application for a war widow's pension by Ms Osmond, who sought to establish that she was a dependant of the deceased, Mr Osmond. The core of the dispute revolved around whether Ms Osmond and her former husband were living together as a couple, specifically a de facto couple, after their divorce. The Administrative Appeals Tribunal (AAT) was required to determine if the criteria for being a "partner" or "member of a couple" under the relevant legislation were met in the period following their separation and divorce.

The Tribunal considered the definition of a "partner" and "member of a couple" as it applied to the circumstances of Ms Osmond and the deceased. The central legal issue was whether, despite their divorce and physical separation, they were still considered to be living together in a de facto relationship at the time of Mr Osmond's death. This required an assessment of their conduct and intentions after the dissolution of their marriage.

The Tribunal's reasoning focused on the evidence presented regarding the couple's separation and Mr Osmond's subsequent living arrangements and expressed intentions. Evidence from various individuals, including the parties' fathers-in-law and friends, indicated that Mr Osmond had moved out of the family home, lived in separate accommodation, and expressed a desire to get away from his previous life and clear his mind. While there was some indication of regret about the separation and a desire to potentially return in the future, the Tribunal was satisfied that Ms Osmond was not living with Mr Osmond at the time of his death and that they were not involved in a de facto relationship. Consequently, the Tribunal concluded that Ms Osmond was not Mr Osmond's dependant at the time of his death.

The Tribunal affirmed the decision under review, meaning Ms Osmond's application for a war widow's pension was not granted on the basis that she was not a dependant of the deceased.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We are satisfied that Ms Osmond was not living with Mr Osmond at the time of his death. The provisions of s 5E(3) do not apply, in our opinion, to this case. We are also satisfied that she was not involved with him in a de facto relationship at that time. From these conclusions, it follows that Ms Osmond was not Mr Osmond’s dependant at the time of his death. FORMAL DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Commenting on Mr Osmond’s work choices/arrangements, his father-in-law Mr O’Brien said that ‘he never stayed long in one place, sometimes as short as one month’ and that at Roxby Downs his work involved filling drill holes with explosives, ‘which he did alone’.[17] Mr Simpson, commenting on Mr Osmond’s work choices, said: ‘I looked at his actions as a way of getting away from the boys’.[18][17] Exhibit R2 (A7), Statement by Patrick O’Brien dated 21 February 2020, p 8.[18] Exhibit R2 (A4), Statement by Vincent Simpson dated 5 February 2020, p 4.The couple’s separation and divorce According to Ms Osmond, her husband moved out of the family home at Sellicks Beach in Adelaide in about October 2013, living initially in a caravan at a friend’s house, then at a unit at Aldinga Beach (an adjacent coastal suburb). Ms Osmond said ‘he wanted to live in a caravan in our back yard but after talking together he [decided that he] would move out completely … as it would be less confusing for the boys’.[19] A year later, Mr Osmond initiated divorce proceedings, with the dissolution confirmed in December 2014. [19] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 11. In his evidence to the Tribunal, Mr O’Brien said Mr Osmond came to his property a number of times in the period after his separation and they would talk together, with Mr Osmond confiding ‘he wanted to get away from everything but still wanted to see his children and Megan’.[20] Mr O’Brien formed the opinion at the time that Mr Osmond ‘was separating because it was the only way to clear his mind’ and that it would ‘clear things up if Megan wanted to go her own way’.[21] He also thought Mr Osmond was ‘totally confused and didn’t want to be living in suburbia surrounded by people’.[22] [20] Statement by Patrick O’Brien to the Tribunal 17 November 2020.[21] Statement by Patrick O’Brien to the Tribunal 17 November 2020.[22] Statement by Patrick O’Brien to the Tribunal 17 November 2020. Mr Simpson told the Tribunal that Mr Osmond made a number of trips to Vietnam around this time (where Mr Simpson was living), telling Mr Simpson ‘he may have made a mistake in separating’.[23] Mr Simpson formed the impression that ‘he wanted to go back … but couldn’t figure a way’.[24] He recalls Mr Osmond saying to him in about 2013, after he had separated, that ‘if the boys quietened down in their teens he might return’.[25] Ms Spinella records that Mr Osmond told her in 2014 that ‘he was regretful of his decision to end his marriage [but that] he needed to sort things out before he could return to his family’.[26] Ms Osmond was similarly of the view that ‘the divorce was his way of looking after us all as best he could’.[27] [23] Exhibit R2 (A4), Statement by Vincent Simpson dated 5 February 2020, p 4.[24] Exhibit R2 (A4), Statement by Vincent Simpson dated 5 February 2020, p 5.[25] Exhibit R2 (A4), Statement by Vincent Simpson dated 5 February 2020, p 4.[26] Exhibit R2 (A5), Statement by Antonina Spinella dated 5 February 2020, p 6.[27] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 12.Mr Osmond’s time in North Queensland