Osmond and Repatriation Commission (Veterans' entitlements)

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 …22(4) or section 23, 24 or 25 [in receipt of a pension at the Special Rate] applied; or
(ii) [this subsection not relevant]
the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with this Act.
Section 11(1) of the Act defines ‘dependant’ as follows:
‘dependant’, in relation to a veteran (including a veteran who has died), means:
(a) the partner; or
(b) a non‑illness separated spouse; or
(c) a widow or widower (other than a widow or a widower who marries, re‑marries or enters into a de facto relationship); or
(ca) a reinstated pensioner; or
(d) a child;
of the veteran.
Section 5E(1) of the Act defines ‘partner’ as follows:
(1) In this Act, unless the contrary intention appears:
‘partner’, in relation to a person who is a member of a couple, means the other member of the couple.
Section 5E(2)(b) defines ‘member of a couple’ as follows
(2) A person is a ‘member of a couple’ for the purposes of this Act if:
(a) the person is legally married to another person and is not living separately   and apart from the other person on a permanent basis; or
(aa) …; or
(b) all of the following conditions are met:
(i) the person is living with another person, whether of the same sex or a         different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the person and the partner are, in the Commission’s opinion                    (formed as mentioned in section 11A), in a de facto relationship;
(iv) the person and the partner are not within a prohibited relationship.
Section 5E(3) qualifies the definition of ‘living with another person’ as follows
(3) For the purposes of subparagraph (2)(b)(i), a person is to be treated as ‘living with another person’ during:
(a) any temporary absence of one of those persons;
(b) an absence of one of those persons resulting from illness or infirmity;
if the Commission is of the opinion that they would, but for the absence, have been living together during that period.
As we have noted, the critical question for us is whether Ms Osmond was living, in 2018, with Mr Osmond (cf s 5E(2)(b)(i) and s 5E(3)) and whether Ms Osmond was in a de facto relationship with Mr Osmond at that time (cf s 5E(2)(b)(iii)).
Section 11A of the Act provides guidance on ‘de facto relationships’ as follows
In forming an opinion for the purposes of this Act whether 2 people are living together in a de facto relationship, regard is to be had to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint   liabilities; and
(ii) any significant pooling of financial resources especially in relation to   major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person;   and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as being in   a de facto relationship with each other; and
(ii) the assessment of friends and regular associates of the people about the   nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social   activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the   people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue   indefinitely; and
(iv) whether the people see their relationship as a de facto relationship.
THE EVIDENCE
In addition to receiving into evidence Exhibits R1 and R2, the Tribunal heard oral evidence from Ms Osmond, Mr Patrick John O’Brien and Ms Cheryl June O’Brien (her parents), Ms Antonina Spinella (a friend and god-parent of the Osmonds’ children) and Mr Vincent Simpson (Ms Osmond’s god-father and long-time family friend). Key elements of the evidence are summarised in the following paragraphs.
The marriage
Ms Osmond said she met Mr Osmond in January 1988 and that they began living together in July 1989. When Mr Osmond was transferred to Townsville in December 1989, she moved with him. She noted that their initial plan to get married in January 1991 was called off by her future husband in December 1990 as ‘Jamie was questioning his decision and after listening to advice from his family and friends called off the wedding and moved out’.[1] She said that after a month or so, Mr Osmond decided he had made the wrong decision and ‘in a couple of months we were back together and were married in August 1991’.[2]
[1] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 10.
[2] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 10.
Mr Osmond’s attendance at an aircraft-crash site
In the early 1990s, while serving in the RAAF, Mr Osmond was part of a team sent to a military-aircraft crash site to assist in retrieving body parts and wreckage.[3] In an interview with a psychiatrist in December 2013, Mr Osmond said that ‘since this experience he ha[d] had persistent and distressing dreams, nightmares and “visions” about the experience’.[4] He also said that ‘prior to the plane crash he was the sort of person who would have a few beers a week but after this experience [he] began drinking noticeably more’.[5] Mr Osmond was subsequently diagnosed with PTSD, with accompanying Alcohol Dependence, a disorder accepted by the Repatriation Commission as qualifying for a disability pension at the Special Rate.
[3]While the specific details are not necessarily relevant, Mr Osmond told a psychiatrist in 2013 that the accident occurred near Townsville around March-May 1991 – and that he returned to the site several times over the following years – while Ms Osmond recollected that it happened at Shoalwater Bay, near Rockhampton: see Exhibit R1, T7/61, Report by Dr Michelle Atchison dated 9 January 2013 and Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 10. Ms Osmond’s recollection is corroborated by Wikipedia, which records the accident occurring in May 1992: see then ‘Training’.
[4]Exhibit R1, T7/62, Report by Dr Michelle Atchison dated 9 January 2013.
[5] Exhibit R1, T7/61, Report by Dr Michelle Atchison dated 9 January 2013.
Their service life
In their 23 years of marriage, Ms Osmond and her husband resided at various locations in Australia, including Townsville, Katherine (two separate postings), East Sale, Weipa and Adelaide. Ms Osmond said she and her husband experienced particularly stressful situations during several of these postings, such as the loss of their furniture and possessions as a result of flooding at Katherine, followed by his hospitalisation on and off at East Sale as a result of ‘something he caught from the floods’.[6]
[6] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 10.
Ms Osmond also said that ‘our time in Weipa was stressful for Jamie’. She was unable to accompany him there initially, as she was expecting their first child and had to remain in Townsville until the birth. Mr Osmond’s stress was compounded by the death of his mother.[7] She also said their move to Adelaide in October 2005 was stressful and that ‘Jamie couldn’t handle [the removal process] … so he left it to me’ to organise both the pick-up and delivery.[8]
[7] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 10.
[8] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 10.
On a more positive note, Ms Osmond indicated that her husband particularly enjoyed his posting in January 2002 as the caretaker at the Delamere bombing range (about 120 kilometres south of Katherine), as ‘he enjoyed the rural life where he could do what he wanted without anyone else being there’.[9]
[9] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 10.
The children
Ms Osmond said that when she suggested to her husband in 2002 that ‘we should start a family … he wasn’t keen’, a sentiment corroborated by Vincent Simpson, who told the Tribunal that ‘Jamie never wanted children but was very happy when Megan became pregnant’.[10] In the event, the couple had three children (all boys), born in 2004, 2006 and 2008.
[10] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 10 and statement by Vincent Simpson to the Tribunal on 18 November 2020.
Ms Osmond said all three children began displaying learning difficulties and behavioural issues from a young age, with all three under the care of a speech psychologist in their pre-school years, ‘followed by a child psychologist once they were at school’.[11] Ms Osmond said the two older boys, as well as Mr Osmond, were diagnosed in 2013 as having a rare genetic syndrome that explained many of the boys’ learning difficulties and behaviour. She also said the youngest boy did not have the syndrome but was diagnosed with emotional immaturity and speech delays.
[11] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 11.
Ms Osmond asserted that Mr Osmond ‘found it hard to recognise that there was anything wrong with the boys … and thought that I just needed to be firmer and just smack the boys more to bring them into line’.[12] Other witnesses before the Tribunal reported a similar understanding and observation of Mr Osmond’s attitude towards his children, including that ‘Jamie couldn’t understand the boisterous nature of the boys’ and ‘he spoke to me of his frustration in dealing with the children’.[13]
[12] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 11.
[13] Exhibit R2 (A6), Statement by Cheryl O’Brien dated 21 February 2020, p 7.
The applicant also contended that Mr Osmond’s approach to dealing with the children was typically to minimise the amount of time he spent with them, saying for example that when the children ‘were younger, he could only deal with them for short periods’.[14] Mr Osmond’s father-in-law Patrick O’Brien similarly noted that in 2013 ‘[Mr Osmond] would regularly come to my house … [which] I saw as his way of getting away from the boys’.[15]
[14] Statement by Megan Osmond to the Tribunal 17 November 2020.
[15] Exhibit R2 (A7), Statement by Patrick O’Brien dated 21 February 2020, p 9.
Mr Osmond’s post-RAAF employment
Mr Osmond left the RAAF at his own request in January 2007. According to Ms Osmond, he then worked in the mining industry and, over the next six or so years, was employed as a ‘fly-in/fly-out’ worker at Queenstown and Rosebery in Tasmania, before going to Leigh Creek in South Australia, Kalgoorlie in Western Australia, and finally Roxby Downs in South Australia.[16] Ms Osmond said his initial working arrangements were one month on with one week at home. That later changed to two weeks on with one week off, then a roster of eight days on followed by six days off.
[16] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 11.
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
Mr Osmond moved to North Queensland in about June 2015 and lived for the following three years in a ‘donga’ on his brother’s 100-acre bush block near Ravenshoe. Ms Osmond said he moved there ‘as he felt he needed the isolation, peace and quiet without any of the stresses of living in a populated area’.[28] Mr O’Brien was of the opinion that Mr Osmond believed the move to North Queensland ‘was the only course of action he could take at the time to improve his and Megan’s head-space’.[29] Ms Osmond noted in her evidence, however, that she believed one of the reasons Mr Osmond moved to North Queensland was ‘to support his family’, especially his father who subsequently passed away.[30]
[28]          Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, pp 11-12.
[29]          Exhibit R2 (A7), Statement by Patrick O’Brien dated 21 February 2020, p 9.
[30]          Statement by Megan Osmond to the Tribunal 17 November 2020.
The Tribunal also heard some evidence indicating relationship tensions between Ms Osmond and Mr Osmond’s parents and between Mr Osmond and Ms Osmond’s parents, both before and after their separation. Mr Osmond’s decision to renege on their planned marriage in January 1991, ‘after listening to advice from his family’, has already been mentioned. Ms Osmond said that in about 2010, ‘Jamie started to listen and act more to what his family in Queensland were saying’.[31] Mr Simpson said he advised Mr Osmond, post separation, ‘to take Megan and the boys to North Queensland’, but knew that ‘[Mr] O’Brien wouldn’t have agreed to it’.[32] Ms Osmond also said that Mr Osmond admitted to her, presumably in about 2015, that ‘he wished he had listened to me and not his family, as they were pushing him to separate’.[33]
[31]          Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 11.
[32]          Statement by Vincent Simpson to the Tribunal 18 November 2020.
[33]          Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 12.
During his three years in North Queensland, Mr Osmond reportedly visited Adelaide on a number of occasions and made numerous telephone calls to his family. There was no evidence presented as to the exact dates of the visits but it is common ground that he initially visited Adelaide every 6-8 weeks, with the gaps becoming longer with the passage of time. At no time did Ms Osmond or other members of her family visit North Queensland before Mr Osmond’s death in July 2018.

Ms Osmond gave evidence that despite the increasing period of time between visits, their relationship began to improve from about mid-2017 onwards, including a resumption of sexual intimacy. She said ‘they started to talk about living together as a family’ and that the relationship was ‘better after the divorce than before’, which she attributed to the fact that Mr Osmond’s time with the boys was limited and that both he and the boys made the most of the time they had together.[34] The Tribunal also heard evidence from Ms Osmond and her parents citing the family-typical activities undertaken during the visits by Mr Osmond.
[34] Statement by Megan Osmond to the Tribunal 17 November 2020.
The Osmonds’ financial and custodial arrangements
In her evidence, Ms Osmond said that throughout most of their marriage she was responsible for their financial arrangements and that ‘everything was in her name, as Jamie found it stressful to deal with … service providers’.[35] When Mr Osmond left the RAAF, she said he put his superannuation payout towards their mortgage on the family home at Sellicks Beach.[36]
[35] Exhibit R2 (A8), Statement by Megan Osmond dated 1 March 2020, p 12.
[36] Exhibit R1, T9/81, Statement by Megan Osmond undated.
Until the time of his death, the Tribunal notes that Mr Osmond had a bank account with Bendigo Bank in his name, with Ms Osmond authorised to use the account; she was also an additional card holder on a credit card issued in his name by ANZ. Ms Osmond said that Mr Osmond ‘often sent additional money to assist with housekeeping or the boys’ schooling, school camps or holidays’. The Tribunal accepts this evidence although there was no bank records produced to the Tribunal in support.[37]
[37] Exhibit R1, T9/81, Statement by Megan Osmond undated.
The Tribunal notes that at the time of his death, Mr Osmond was paying child support to Ms Osmond, at a rate equivalent to almost $13,000 per annum (from an income of $64,000) and that there had been four ‘change-of-assessment’ applications made in earlier years, one of which was contested by Mr Osmond in an appeal to this Tribunal.[38] Ms Osmond, in response to a question from the Tribunal, said Mr Osmond had objected to these applications only because ‘he believed he was capable of looking after his family with [their involvement]’.[39]
[38] Exhibit R1, T12/87-89, Child Support Assessment dated 4 January 2018.
[39] Statement by Megan Osmond to the Tribunal 17 November 2020.
The Tribunal also notes that following their divorce, Ms Osmond sought custody of the children through the Family Court, which found in her favour and included a restraining order against Mr Osmond, prohibiting his consumption of alcohol in the 12-hour period before any approved visit to the children.[40]
CONTENTIONS
[40] As asserted by Megan Osmond in a statement in support of application to DVA: see Exhibit R1, T7/37- 38.
The applicant’s contentions
Mr Crowe, for the applicant, contended that the relationship between the applicant and Mr Osmond in the period after their separation should be construed as a ‘de facto’ relationship having regard to the factors mentioned in s 11A of the Act.[41] He argued that the few instances where the circumstances of their relationship did not fully ‘fit’ the sub-provisions of s 11A could reasonably be explained as a consequence of Mr Osmond’s mental illness, though nevertheless largely consistent with the norms of the relationship that had evolved over the course of their marriage.
[41] Written submission to the Tribunal dated 18 November 2020.
Mr Crowe cited, as an example, the contesting by Mr Osmond of the child support decisions, which Mr Crowe submitted were a feature of Mr Osmond’s poor mental situation that led him to test every decision. The same feature, he contended, led Mr Osmond to formalise his separation from Ms Osmond using the process of divorce. Another example, relating to the joint ownership of real estate, was Mr Osmond’s decision to live in the most basic accommodation on his brother’s property in North Queensland, which Mr Crowe contended could be seen as Mr Osmond’s desire not to impact adversely the ability of those he loved to live in the comfort and security they had known in happier times.
Mr Crowe further argued that while the divorce ended the legal marriage between Ms Osmond and Mr Osmond, it did not end their relationship. Indeed, Mr Crowe argued that Mr Osmond’s attitude to his relationship with Ms Osmond in the last period of his life bore ‘a startingly close similarity to much of the period of their marriage’, where they were often apart more than they were together, as a result of the exigencies of his RAAF service and later because of his employment as a fly-in/fly-out worker in the mining industry.
Mr Crowe conceded that Ms Osmond and Mr Osmond were physically apart more than they were together in the period between 2013 and 2018. However, he argued this was because of Mr Osmond’s mental illness, a circumstance contemplated by the legislative intention of s 5E(3) which provides for an absence resulting from illness or infirmity to be ignored when evaluating whether two people were living together. We note this provision is subject to a proviso: ‘if the Commission is of the opinion that they would, but for the absence, have been living together during that period’.
Mr Crowe argued that Mr Osmond’s absence was never intended to be permanent and that he was doing what he could to resolve his personal struggles, with his plan being to return to his family when he succeeded. That he did not return to the family home more frequently, as he did when working as a fly-in/fly-out worker, was simply because his travel in the mining industry was paid by his employer, whereas the cost of flying to and from North Queensland was at this expense, and more frequent visits would effectively have taken money away from Ms Osmond and his children. Mr Crowe concluded that ‘this was a man working very hard, if not smartly, to rebuild his family’.
The respondent’s contentions
Mr Wilson, for the respondent, contended that the Tribunal could not be reasonably satisfied by the material before it that the applicant was living with Mr Osmond at the time of his death, nor that she was in a de facto relationship with him.[42] Consequently, he argued, the Tribunal ought to find that the applicant was not a dependant of Mr Osmond for the purposes of the s 11 of the Act and hence not entitled to a war widow’s pension.
[42] Written submission to the Tribunal dated 18 November 2020
Mr Wilson noted that the only category of ‘dependant’ available to the applicant in s 11(1) of the Act is that of ‘partner’ of the veteran. It follows, in accordance with the definition under s 5E(1), that the applicant must establish that she was the other ‘member of a couple’. Sub-sections 5E(2)(b)(i) and (iii) further require that to be a member of a couple when not married, the applicant would need to be ‘living with’ the veteran and in a de facto relationship with him.
Whether the applicant was ‘living with’ Mr Osmond at the time of his death
Mr Wilson noted there was no dispute between the parties that the applicant was living in Adelaide and Mr Osmond was living in North Queensland at the time of his death – and this had been the case for the preceding three years. Mr Wilson noted that s 5E(3) qualifies the definition of ‘living together’ to allow a person to be treated as living with another person in prescribed circumstances. The first is if the absence is ‘temporary’, which Mr Wilson argued is not applicable here. The other qualification is if the absence resulted from ‘illness or infirmity’, though for there to be an absence, Mr Wilson argued there must have been a period of living together.
In that regard, Mr Wilson drew the Tribunal’s attention to the Federal Court’s explanation in Jenkins v Repatriation Commission [1999] FCA 269 which stipulated three factors to be considered in addressing s 5E(3), including that ‘the absence of the applicant from the joint relationship resulted from the illness or infirmity of the veteran’. Mr Wilson argued that because s 5E(3) only qualifies s 5E(2)(b)(i), the deeming provision would not apply to the applicant’s circumstances. Indeed, he argued the applicant is seeking to use the dispensation not in respect of a withdrawal from a period of living together but in respect of a failure to live together at all.
Should the Tribunal take a different view of the living together requirement, Mr Wilson invited the Tribunal to consider points (b) and (c) of Jenkins, namely whether the absence of the veteran from the joint relationship resulted from the illness or infirmity of the veteran, and whether the parties would have been living together in the period they were apart but for (b).
In relation to point (b), Mr Wilson contended that while the applicant has asserted that Mr Osmond’s mental illness was the cause of the difficulties between them, there was no medical evidence that specifically addresses whether Mr Osmond’s mental illness was the sole reason for his withdrawal from the relationship. In relation to point (c), Mr Wilson noted the Tribunal heard evidence that there were several reasons for Mr Osmond’s ongoing absence, which admittedly included his mental state, but which also included other reasons; for example, his desire to be close to his father, his preference not to live in suburbia, and the difficulties he had with his children.
Whether the applicant and Mr Osmond were in a de facto relationship
In respect of the question of whether the applicant and Mr Osmond were in a de facto relationship, Mr Wilson contended that because the requirements of s 11A presuppose that the people are living together, the fact that the applicant and Mr Osmond were not living together is indicative that they were not in a de facto relationship. Mr Wilson further noted that in her claim for a pension, Ms Osmond stated she was ‘divorced’, whereas she could have ticked the ‘de facto relationship’ box.[43]
[43] Exhibit R1, T7/33, Extract from application to DVA by Megan Osmond, received on 8 November 2018.
Mr Wilson addressed ‘all the circumstances’ of their relationship as required by s 11(A). His contentions are briefly summarised as follows:
(a)Financial aspects of the relationship – There was no pooling of resources or sharing of day-to-day household expenses and Mr Osmond’s payment of child support was no more than a fulfillment of his legal obligations.[44] Furthermore, Mr Osmond’s objection to the several change of assessment decisions ‘are at odds with the picture of harmony sought to be painted by the applicant’. Although Ms Osmond said Mr Osmond often sent extra money to assist with housekeeping and school expenses, there is no evidence to substantiate this.
(b)Nature of the household – There was no joint household and, consequently, no joint responsibility for the day-to-day care or support of the children. Mr Osmond may have returned to visit the applicant on a number of occasions but did not have any regular, ongoing household responsibilities or commitment to providing care for the children.
(c)Social aspects of the relationship – The evidence of a limited social relationship between the couple following their divorce is consistent with what any divorced couple with responsibilities for their children might do, noting also that neither Ms Osmond nor the children ever visited Mr Osmond in North Queensland.
(d)Any sexual relationship between the people – Ms Osmond’s account of infrequent sexual relations after the divorce is reflective of a sexual liaison rather than a sexual relationship.
(e)Nature of the people’s commitment to each other – The evidence reflects the fact that they continued to have responsibility for their children. There is also evidence that Mr Osmond considered the marriage to be at an end and that Ms Osmond was ‘free’. Although there is evidence Mr Osmond thought he might return to live with Ms Osmond once the children had grown up, that was something for the future.
[44] Mr Wilson cited Pelka v S,DFCS (2006) 151 FCR 546 at [52]
In summary, Mr Wilson contended that the evidence of ongoing commitment and support, and of a resumed sexual relationship between the applicant and Mr Osmond, was limited. At most, he contended it proves they were not antagonistic and may have discussed becoming a couple again in the future. However, there is no evidence these discussions had led to any substantial change in their living arrangements.
CONSIDERATION
The Tribunal accepts that Mr Osmond suffered from PTSD and that his mental illness was an ongoing and significant factor in his relationship with Ms Osmond and his children. We also accept that his mental illness was a contributing factor to his decisions to divorce Ms Osmond and to move to North Queensland.
The Tribunal heard evidence that suggested Mr Osmond wanted to be away from the boisterousness of his children and did not want to live in suburbia. We note that both these concerns could have been accommodated by his relocating to rural South Australia. Had Mr Osmond done so, he could have had more frequent visits with his children and a greater interaction with Ms Osmond in South Australia. That he chose to move to a remote part of North Queensland – and stay there for three years – does not seem to us to reflect a desire or intention on Mr Osmond’s side to reconcile in the near term with Ms Osmond.
It is important, in our opinion, to bear in mind that Ms Osmond and Mr Osmond were divorced, and not merely separated or estranged. Divorce is a clear and final process that leads to the end of a marriage. We do not believe the decision was undertaken lightly by Mr Osmond. Mr Osmond did end up taking the step to divorce his wife, and we believe he did so because he was dissatisfied with his marriage and he wished to end it formally and finally. We do not accept the submission that the divorce did not change the nature of the relationship between Ms Osmond and Mr Osmond. To the contrary, divorce, as a formal process resulting in a dissolution of a marriage, had important consequences for this couple as it does for all couples. A divorcing couple must agree on a division of property and make arrangements for any appropriate ongoing financial support by one former spouse for the other. They must agree arrangements with respect to custody and access to minor children by the non-custodial parent, and with respect to the minors’ ongoing financial support. These new arrangements reflect the reality of an end to a common household. Where these matters are not agreed, they are adjudicated upon by a Court, and orders are imposed upon the divorcing parties. Importantly, from the point of divorce onwards, each person becomes free to recommence his or her life as a single person, subject, of course, to compliance with the agreements or court orders in respect of the matters we have mentioned.
It is sometimes the case that one or other of the couple comes to regret the decision to divorce. It is also sometimes the case that a divorced couple finds that they get along with one another better after their divorce than they did at an earlier stage. Neither of these facts contradicts what we take to be a fundamental fact in the case before us, namely that the divorce marked the end of Mr and Ms Osmond’s marital life.
The critical question, then, is whether there ever was, after the divorce, a resumption of a marriage-like or de facto relationship between Mr Osmond and Ms Osmond. In this regard, we note that we heard from several witnesses that Mr Osmond had repeatedly professed a desire and intention to ‘get back together’ with Ms Osmond, though often with the qualification ‘when the boys are older’. However, we heard no evidence to suggest Mr Osmond had a specific timeframe in mind, nor that he or the applicant had formulated or even discussed specific plans for getting back together.
Taken as a whole, this evidence supports the view that Ms Osmond was not in a de facto relationship with Mr Osmond at the time of his death. To the contrary, this evidence, taken at its highest, suggests that Mr Osmond merely envisaged a future relationship with Ms Osmond.
We also agree with Mr Wilson’s submission that the relationship between Ms Osmond and Mr Osmond, post-divorce, was not as harmonious as Ms Osmond suggested. We agree with Mr Wilson’s submission that Mr Osmond’s objection to four child-support reassessments is not indicative of a completely amicable relationship. Mr Osmond’s observation that the divorce would ‘free’ Ms Osmond also suggests that he accepted the fact that the divorce would permit Ms Osmond to pursue another marital relationship if she chose to.
We believe the physical separation of Mr Osmond from Ms Osmond is significant. Mr Osmond was living in rural Queensland at the time of his death, while Ms Osmond continued to live in South Australia. The distance between them was considerable and was self-evidently an obstacle to increasing the frequency of his visits with Ms Osmond. Mr Osmond did not choose, for example, to live in rural South Australia, which would have allowed him more frequent visits with his children and Ms Osmond, and vice versa.
In our opinion, it is clear that Mr Osmond and Ms Osmond were not living together at the time of his death. We do not accept Mr Crowe’s submission that s 5E(3), which we have quoted above at [10], applies. We accept that Mr Osmond’s decision to relocate to primitive accommodation in North Queensland was an unusual choice and was influenced by his mental health issues. But we do not view Mr Osmond’s decision to relocate to North Queensland as a mere ‘temporary absence’ for the purposes of paragraph (a) of s 5E(3), nor do we consider it an absence from an existing relationship caused by mental illness for the purposes of paragraph (b). Rather, Mr Osmond relocated to Queensland only in 2015, that is, after his divorce. The divorce had, of course, ended the marriage in 2014 and the couple’s marital life. Moreover, we would not have been satisfied that, but for the absence, the couple would have been living together. To the contrary, all the evidence we have considered is consistent with Mr Osmond having found life within the family unit difficult and uncongenial.
We do accept that, if Mr Osmond had enjoyed better emotional and mental health, he and Ms Osmond may have persevered in their marriage and would, almost certainly, have been happier together. We might even conclude that they might not have divorced. That is not, however, in our opinion, the question the statute requires us to answer. That is, we do not believe that it is appropriate for the Tribunal to ask itself whether Mr Osmond and Ms Osmond would still have been married and living together in 2018 had Mr Osmond enjoyed better emotional and mental health. At the time of his death, Mr Osmond and Ms Osmond had been divorced for some years, and Mr Osmond had made the significant life decision to relocate to North Queensland after his divorce, as we have noted. They were not living together at the time of his death and had not been for some years. Mr Osmond’s decision to relocate to North Queensland is inconsistent with the existence of a marriage-like or de facto relationship between the couple after their divorce.
The sexual intimacy to which Ms Osmond referred in her evidence must be viewed, in our opinion, in the context of their relations taken as a whole. The intimacy did not occur in circumstances where Mr Osmond was living with Ms Osmond in a common home. It does not alter our opinion that they were not living together at the time of his death in a de facto relationship.
The fact that Mr Osmond and Ms Osmond had been getting along better together after the divorce seems to us to be a neutral factor. As we have earlier said, it is often the case that divorced couples find that they get on better once they are no longer living together. With the difficulties of an unhappy marriage behind them, former spouses often make special efforts to ensure any time they spend together is enjoyable, or at least civil, particularly when they have ongoing responsibilities for the care of minor children.

So far as the financial aspects of the relationship are concerned, we note that Mr Osmond was paying child support to the applicant at a rate of around $13,000 per annum from an assessed income of $64,000. We note also that Mr Osmond apparently regularly contributed to ongoing family expenses, particularly the children’s educational expenses. We accept also that Ms Osmond had access to a joint bank account and to a credit card for which Mr Osmond was responsible. This evidence suggest to us that Mr Osmond maintained an ongoing sense of responsibility for Ms Osmond’s financial welfare and that of their children. It does not persuade us, however, that Mr Osmond and Ms Osmond maintained a joint household and were living together as a couple.
CONCLUSION
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.

1.       I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta and Member Lt-Col R Ormston.

................[Sgnd]................................
Administrative Assistant Legal
Dated:     9 April 2020
Dates of hearing:  26-27 November 2020
Applicant’s Representative:  Mr Adrian Crowe
Respondent’s Representative:  Mr David Wilson

[2021] AATA 851

9 April 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness