Patricia Bergin and Repatriation Commission

[2015] AATA 224

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/4953

Re

Patricia Bergin

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms N Isenberg, Senior Member

Date 15 April 2015

Place Sydney
The Tribunal affirms the decision under review.

.........................[sgd]...............................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Widow's pension - whether Applicant and veteran in de facto relationship - no joint financial interests - some sharing of household responsibilities - lived together and had sexual relationship - conducted themselves as couple - veteran did not hold himself out as de facto - mixed reaction of family and friends - no de facto relationship - decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 ss 5E, 11(1), 11A, 13
CASES
In the Marriage of Todd (No 2) (1976) 25 FLR 260

Lynam v Director-General of Social Security (1983) 52 ALR 128
Marei v Department of Employment and Workplace Relations [2007] FMCA 458
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
Ms N Isenberg, Senior Member
BACKGROUND

On 1 August 2011 the Applicant, Patricia Bergin made a claim for widows’ pension. The claim was refused on 21 November 2011 on the ground that the Applicant had not been a dependant of the veteran, Charles Plummer, who died on 21 April 2009. That decision was affirmed by the Veterans’ Review Board on 19 August 2013. The Applicant now seeks review by this Tribunal.
LEGISLATION
Section 13 of the Veterans’ Entitlements Act 1986 (‘VE Act’) provides:
(1)Where:
(a)the death of a veteran was war-caused; or
(b)…
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran - pensions by way of compensation to the dependants of the veteran
Section 11(1) defines ‘dependent’ as follows:
"dependant", in relation to a veteran (including a veteran who has died), means:
(a)the partner; or
(b)… or
(c)a widow or widower (other than a widow or a widower who marries, re-marries or enters into a de facto relationship)
Section 5E defines "widow" as a woman who was the partner of a person immediately before the person died. It also provides the following definitions:
"Partner, in relation to a person who is a member of a couple", means the other member of the couple.
"Member of a couple" has the meaning given by subsections (2), (3), (4) and (4A).
Member of a couple
A person is a member of a couple for the purposes of this Act if:
(a)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 11 A), in a de facto relationship;
Section 11A defines de facto relationships:
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.
ISSUE BEFORE THE TRIBUNAL
The issue for this Tribunal to determine is whether the Applicant was a member of a couple with the veteran.
CONSIDERATION OF THE EVIDENCE
By way of background, it is clear that there is some acrimony between the Applicant and the veteran’s only child, Brad Plummer (‘Brad’). Brad was the sole beneficiary of his father’s will and the Applicant was specifically not provided for in the will. The Applicant brought Family Provision proceedings (‘FP proceedings’) under the Succession Act 2006 (NSW) which were ultimately settled.
Before me the Applicant gave evidence, as did her son, Christopher Bergin (‘Christopher’) and daughter Lee Ann Patricia Walker (‘Lee Ann’). Numerous statements from the Applicant’s acquaintances which, it appears, had been arranged for the purposes of the FP proceedings were also relied on. A number of statements supportive of Brad’s position in the FP proceedings were also available. Brad, who had also provided statements in association with the FP proceedings, was called to give evidence but provided a medical certificate to the effect that he was too ill to participate. The Applicant’s solicitor sought to have Brad’s evidence excluded. I have taken it into account but afforded it the appropriate weight, noting that the Applicant’s solicitor did not have the opportunity to cross-examine him. For the same reason I also attach limited weight to the other witnesses who were not called. Having said that though, given the acrimony between the Applicant and Brad, I have attached more weight to the evidence of disinterested observers and most weight to objective evidence. I have attached particular weight to the various accounts provided by the veteran to others.
Importantly too, in my view, it is necessary to ensure that the evidence is appropriately contextualised in time. As I discussed with the Respondent at the hearing, there is no requirement in the VE Act as to duration of the marriage-like relationship, providing there were sufficient indicia that I could be reasonably satisfied of such a relationship. Generally speaking, later evidence about their relationship before the veteran died is of greater significance. Having said that, earlier evidence about the relationship may impact upon credit assessment of the later evidence. All the circumstances must be taken into account.
The financial aspects of the relationship
Any joint ownership of real estate or other major assets and any joint liabilities
The veteran’s principal asset was his home in North Balgowlah. The property had been owned jointly with his late wife who died in 1992. It was not transferred into the veteran’s sole name until 2005, at about the same time as he made his will, in which he named Brad as his executor and sole heir, with Brad’s wife Joanne and his children as beneficiaries in the event Brad predeceased him.
It was submitted on the Applicant’s behalf that little or no weight can be given to the fact that the veteran did not transfer some interest in the property to the Applicant as he owned the home long before they entered into a relationship. On the other hand, by the time the veteran made his will in May 2005, according to the Applicant’s evidence, their relationship was well-established and they lived together at least five days a week. It would have been opportune at the time of the transmission application to have transferred a share in the property to the Applicant, but he did not do so. Further, not only did the veteran not transfer a share to the Applicant but he specifically excluded her from his will. Many of Brad’s family and friends provided evidence that the veteran referred on many occasions to Brad receiving the house on the veteran’s death and that he was concerned about the Applicant having a claim on it.
The veteran’s only other significant assets were a motor vehicle, a motor cycle and a boat, a share of which was also not transferred to the Applicant. However I attach little weight in respect of those items.
There was no evidence that the Applicant had transferred a share of assets to, or combined her assets, if any, with, the veteran.
Any significant pooling of financial resources especially in relation to major financial commitments
In her evidence the Applicant said she and the veteran maintained completely separate finances. She conceded that she was not privy to his private affairs.
They took many holidays together from 1996, for which the Applicant said they shared the cost equally, but this was unsupported by any other evidence. On one occasion in 1997, the Applicant said the veteran had paid most of the costs of a holiday to Athens and Rome, as the Applicant did not have the money at the time.
It was submitted on the Applicant’s behalf that as both she and the veteran met as mature people having previously established their own bank accounts, the fact that they did not join those accounts is a less significant factor than if they had both met when young. While I may accept that contention, it remains that the Applicant and the veteran did not open any accounts together.
In Pelka v Secretary, Department of Family and Community Services(2006) 151 FCR 546 ; [2006] FCA 735 when considering the financial aspects of the relationship, French J (at [52]) addressed the meaning of the term "pooling of financial resources". His Honour referred to the ordinary meaning of the word "pool" in the New Shorter Oxford English Dictionary as "Put resources into a common stock or fund; share in common, combine for the common benefit".
In this matter, at no time was there pooling of financial resources in that sense.
Any legal obligations owned by one person in respect of the other person
It was submitted that the veteran owed legal obligations to the Applicant of mutual support as a common law spouse. I reject this submission because it essentially calls for a conclusion on the very matter about which I have to decide.
The basis of any sharing of day-to-day household expenses
According to the Applicant’s evidence, discussed below, up until 2000 she was only staying with the veteran on most weekends. From her account it was inferred that they shopped then for the household; she did not explain if she otherwise shopped for herself for the remaining five nights.
The Applicant’s evidence was that from 2000 she stayed at the veteran’s home five times a week. Again, there was no evidence whether she otherwise shopped for herself for the remaining two nights.
The Applicant’s evidence was that from 2000 to when the veteran died in 2009, they went shopping together and shared the cost of groceries. She said in cross-examination that she would “help him with other groceries”, and that from time to time when they went out they would share the cost or she would pay. She said that they would both buy groceries; they often paid each other’s chemist bills, depending on who went to the chemist.
In cross-examination she said the veteran usually did the shopping because she was at work, and he also did all the cooking.
The Applicant conceded that the veteran paid all the household bills including rates, electricity, insurance and maintenance, notwithstanding that the Applicant, not the veteran, was working even up until shortly before the veteran’s death, with the exception of a short period in 2007 when she went onto Centrelink benefits. The veteran, according to Brad, was frugal.
In Pelka French J stated in relation to pooling of resources that "It plainly involves something more than financial cooperation or separate contributions to different elements of household expenses". See also Marei v Department of Employment and Workplace Relations [2007] FMCA 458 where it was observed that “pooling” involves something more than mere financial cooperation or separate contribution to different elements of household expenses at [29].
In my view while there may have been some financial cooperation, as French J observed in Pelka, it does not take a relationship on its own very far down the path towards characterising a marriage-like relationship.
The nature of the household
The veteran and the Applicant’s living arrangements
The Applicant met the veteran in April 1995 and she said they commenced a relationship in about August 1995. Between August 1995 and 1997, the Applicant stayed overnight with the veteran and on weekends with him about once a month. Between 1997 and 2000 she stayed with the veteran at his home nearly every weekend. From 2000 to 2005 the Applicant and the veteran lived together five days a week at the veteran’s home. Her evidence was that she lived the other two nights at a unit in Harbord during 2000 until about July 2001. From July 2001 until she moved into the veteran’s home fulltime in about December 2005, she lived for those two nights a week in a bed-sitter unit at the Strand, Dee Why (‘the Strand’).
In December 2005 her son Christopher moved to Sydney, initially sleeping in his van. After a week he moved into the Strand with his mother. After another week, his mother moved out – to the veteran’s home, but, on her evidence, she continued to pay the rent for the Strand.
On 28 February 2007 in a Centrelink claim for Job Network Assistance While Looking for Work the Applicant wrote that her address was the Strand and that she had lived there for the preceding 12 months.
Her landlords from the Strand, Mr and Mrs Ovenell, provided a reference dated 28 June 2007 in which they wrote of the Applicant having lived there for over six years. There was no mention of Christopher being at the premises nor that the Applicant had only lived there part time, as she has claimed, since at least 2000. The Applicant, in cross-examination, claimed that the Ovenells were aware Christopher lived there.
In July 2007 the Applicant said she entered a lease ‘for Christopher’ for a two bedroom unit in Dee Why Parade, Dee Why (‘Dee Why Parade’). She denied that she had ever stayed there, because, by that time, she was living fulltime with the veteran. Troy Houghton, a friend of Christopher’s, provided an affidavit that he had moved into the spare bedroom at Dee Why Parade in mid-2007 to about March 2008; the Applicant did not stay there at all during that time. The veteran reportedly told Joanne that ‘[the Applicant’s] son comes and goes’. When the Applicant moved to his place he told her it was on a temporary basis.
The evidence before me included an extract from the 2008/9 White Pages which recorded the Applicant’s address as Dee Why Parade. The Applicant said that was the contact number for Christopher.
In April or May 2008 Christopher moved to the Central Coast where both he and the Applicant were recorded on the rental agreement as the tenants. The Applicant said that she leased the premises because Christopher was on workers’ compensation and could not raise the bond. Christopher said that his previous address was in Kilkivan, in Queensland, and that he had lived there for six months. He did not refer to Dee Why Parade at all. The reason he gave on the lease for the change was “Mum moving”.
The Applicant said the real estate agent at the Central Coast knew she may visit from time to time but that she lived and worked in Sydney. The Applicant denied ever staying there. On the agreement the Applicant recorded her current address as Dee Why Parade, and that she had lived there for nine months. According to her evidence, however, she had, by that time, been living fulltime with the veteran for about two and a half years.
Lee Ann gave evidence that from about 2004 she visited her mother at the veteran’s home about two-three times a year, although her mother was not always there when she visited. That evidence is equivocal and does not assist in that it is equally consistent with the Applicant living there or merely visiting.
It was not until after the veteran had died that the Applicant told Centrelink that her address was in Balgowlah. Notwithstanding her evidence that from late 2005 she lived with the veteran fulltime, she had consistently told Centrelink that her address was at the Strand,:
·26 February 2007 Preliminary Claim for Newstart Allowance
·28 February 2007 claim for Job Network Assistance While Looking for Work ( she had lived [at the Strand] for more than 12 months)
·28 February 2007 Customer Declaration (does not live in shared accommodation and pays $190 rent per week)
There was evidence that a MasterCard account was sent to her at the veteran’s address in 2006 and an IGU statement in 2008 and 2009. Correspondence from the Australian Taxation Office was sent to her at that address in respect of 2006. In July 2005 she changed her address on the electoral roll.
Brad’s evidence in the LP proceedings was that he had never seen any women’s items at the home, other than items that had been his mother’s. The Applicant said Brad never visited the home after 2005. He may have visited his father while she was at work, but the veteran never mentioned that to her.
Brad had provided in the FP proceedings a statement from Robert Milligan, who has since died. He was a long-time friend of the veteran who, up until late 2008, used to stay at the veteran’s home when he came to Sydney – once or twice a year. He wrote that he never saw another person’s belongings at the veteran’s home. He said the veteran told him the Applicant had wanted to rent a room at his place, and that she had a place at Dee Why.
Mr Milligan said that in August 2008 the veteran introduced the Applicant as “a friend” and told him she wanted to move in but he didn’t want her to as it would “bugger up [his] pension”. The Applicant said she had met Mr Milligan a couple of times, but denied that he had not met her before August 2008.
In the LP proceedings Brad also provided an affidavit by Cameron Mock, a neighbour of the veteran’s. Mr Mock said that he would drop in to see the veteran every other week until he died. He claimed not to have seen the Applicant at the veteran’s home, nor did he see any of her belongings. He said that in the year before the veteran’s death he did not regularly see the Applicant at the veteran’s home and her car was not regularly parked outside. The Applicant claimed her car was there “constantly”.
The evidence about when the Applicant moved into the veteran’s home fulltime is very confusing, and is, in some respects, completely contradictory. It is difficult to determine the opportunity some witnesses might have had to observe whether the Applicant lived there fulltime or was merely a frequent visitor. Tellingly, however, Brad had conceded that the Applicant lived with the veteran from about August 2008. He said his father told him in about October 2008 that the Applicant gave him $50 a week rent and a few bottles of spirits from time to time.
The basis on which responsibility for housework is distributed

At the time the veteran and the Applicant met, the veteran was retired whilst the Applicant was still in the workforce. The veteran remained at home and did most of the housework. The veteran was reportedly a meticulous housekeeper.
I considered that the nature of the household was of a pattern of joint responsibilities, taking into account that one partner is working and one not. However it was not an aspect of the relationship that pointed strongly one way or the other.
By October 2008 the veteran was diagnosed with his terminal illness, and the Applicant’s evidence was that from about that time he was unable to eat; by January 2009 he had become very thin and unwell. The Applicant denied Brad’s assertion that the house became unkempt after that time, whereas previously when the veteran had been responsible for the housework, it was meticulously clean. This is not the forum to discuss the Applicant’s homemaking skills.
The social aspects of the relationship
Whether the veteran and the Applicant held themselves out as married to, or in a de facto relationship with, each other
The veteran consistently described his marital status in forms submitted to the Respondent as “widowed”, as distinct from selecting “de facto”, for example on 13 January 2003 and on 10 March 2008. The latter entry was made when, on the Applicant’s evidence, she and the veteran had lived together fulltime since 2005.
Similarly, the Applicant herself declared the following to Centrelink:
·26 February 2007 Preliminary Claim for News tart allowance (marital status “single”)
·28 February 2007 – claim for Job Network Assistance While Looking for Work ( marital status “single”)
·28 February 2009 Income and Assets Statement (Do you currently have a partner? ”No”).
The Applicant’s evidence was that, on the advice of the veteran, she had not told Centrelink about their relationship and that they lived together because it “might affect [his] pension”. She conceded that this had been a lie but had corrected the information after the veteran’s death. She claimed not to have known that she needed to disclose a spouse in her tax returns. She said her tax agent “knew Charlie”. Nonetheless he did not note the claimed relationship on her tax returns; the Applicant said she just signed them without reading them. Similarly, the veteran did not describe himself as in a de facto relationship in his tax returns.
The assessment of friends and regular associates about the nature of the relationship
The Applicant claimed she and the veteran were treated as a couple by their regular friends and associates. In a number of the affidavits in the FP proceedings deponents wrote of their understanding that the Applicant and the veteran were a couple:
·Chris Olive, the president of the Dee Why RSL Club, saw them at the Balgowlah RSL Club at least a couple of times a week, and after 2000, at the Dee Why RSL club about once a week. He observed them acting ”romantically and affectionately to one another”.
·Fay and George Briggs, the next door neighbours at the veteran’s home, provided written statements to the effect that the Applicant moved in permanently in 2005. The veteran told Fay in about 2004 that he wanted the Applicant to move in fulltime but was scared that it might impact upon Brad getting the house.
·Gary Paton, the next door neighbour at the veteran’s home, observed the Applicant’s car in the veteran’s driveway regularly. From about 2004 onwards he saw them together “constantly” and they acted like boyfriend and girlfriend.
·Lorraine Wright, a childhood friend of the Applicant, would stay at the Strand when she visited Sydney about twice a year from about 2000 to 2005, but said the Applicant was never there. From 2005 she would stay at the veteran’s home when she visited, where the Applicant and the veteran shared the bedroom. When she asked if they were living together both the Applicant and the veteran said they were.
·Ian Traveller, the Branch President of the Balgowlah Seaforth Clontarf Sub Branch of the RSL Australia, said the Applicant and the veteran visited the club together at least once a week. They held hands and sometimes kissed and he sometimes called her “sweetheart”.
The Applicant’s daughter, Lee Ann, observed that her mother and the veteran “treated each other as buddies”, a description I considered to be somewhat guarded in the circumstances. From about 2005 until early 2009 when the veteran became too ill to dine out, she and her husband would have a meal with her mother and the veteran several times a year. Her daughter treated the veteran as a grandfather. Lee Ann had only met the veteran’s family once until the last three weeks before he died, when she met them about three times.
At the wedding of the son of Stephen and Gail Dalton in December 2007 the Applicant and the veteran were invited as “Charlie and Pat Plummer”. The veteran, the Applicant and the Applicant’s friend, Evelyn, travelled together to New Zealand.
The Applicant provided a number of Christmas cards addressed, variously, to “Charlie and Pat”. Similarly, the board and members of the Wakehurst Golf Club sent the Applicant a sympathy card, addressing her as “Mrs Plummer”. Condolences were sent to the Applicant by Northern Beaches Palliative Care.
A number of statements were provided by Brad in support of his position in the FP proceedings:
·Donald Heath, an old friend of the veteran’s, who wrote that the veteran attended the club, both with and without the Applicant. He said the veteran told him in August or September 2008 that the Applicant was moving in temporarily, and the veteran sought no financial contribution from the Applicant as she was his guest. When he visited the veteran after he became ill he saw him being cared for by Brad, and only twice did he see the Applicant there. He understood her to be at work or overseas.
·Carolyn Heath, the veteran’s niece, had been on holidays with the veteran and the Applicant as part of a group and had observed their financial independence.
·Ian Waddell, who had known the veteran for 12 years, and who is a close friend of Brad’s, wrote of the veteran only mentioning the Applicant once. He understood her to be only a travelling companion. He wrote of the veteran visiting his son alone and that sometimes he would be with Shirley. He only saw the veteran once after Brad’s 50^th birthday (which was in 2007).
·Brad Plummer junior, the veteran’s grandson, had stayed at his grandfather’s when in Sydney and observed his grandfather to be the only person there. In late 2008 “things changed” and Pat asked his grandfather if she could stay till she found somewhere. From then, whenever he phoned to speak to his grandfather the Applicant was there.
·Naomi Plummer, Brad junior’s wife, said that the veteran had told her about “Pat” as someone he had been on holidays with and that in October 2008 told her that she was moving in while she looked for another place.
·Walter Mobbs, a close friend of the veteran’s, said the veteran told him that he did not want to jeopardise his son’s inheritance nor would he consider marriage. He understood the veteran to have insisted the Applicant pay her own way when they travelled together. He understood the Applicant to have lived at Dee Why with her son until mid-2008. She was concerned about security of mail and had her mail re-directed to the veteran’s home. This is consistent with what the veteran reportedly told Brad. When the lease was terminated because the owners were selling, the Applicant asked the veteran if she could move in while looking for a suitable place for her and her son.
·Lauren Plummer, the veteran’s granddaughter, said the veteran told her that the Applicant was staying with him temporarily until she found alternative accommodation. The veteran consistently described the Applicant as “a friend”. She observed that Shirley would often partner the veteran at family functions.
·Hayley Plummer, the veteran’s other granddaughter, wrote of “Pat” answering the home phone when she phoned to speak to her grandfather when he was very ill.
·Louise Plummer, another granddaughter, wrote of the Applicant staying in the house at night while the veteran was in hospital.
·Gina Shaw, Shirley’s daughter and Brad’s sister-in-law, had never heard of another woman.
·Richard Suter, who had known the veteran since 1975, said Brad had come to Sydney to nurse his father.
·Sandra Hill, a friend of the family for 30 years and Brad’s sister-in-law, said the veteran mentioned the Applicant to her several times when he would drive her to visit Brad’s family in Harrington. The veteran said that he and the Applicant holidayed together, each paying their own way, but denied sleeping with her. He said the Applicant would occasionally join him at the RSL club. He said there was “nothing in it”, and he did not want to be tied down; he also told her about other female friends. He said he was unable to “shake her” and that “you go out with birds and they think you’re an item”. He told Ms Hill about the Applicant moving into his place temporarily. Her last trip with the veteran was in October 2008 when he was starting to experience symptoms of his terminal illness. He told Ms Hill he intended to leave the house to Brad. In March 2009 when Brad came to Sydney to nurse his father he stayed a couple of nights at Ms Hill’s home and then stayed at his father’s.
·Jeffrey Niven, an old school friend of Brad’s, did not provide any information about the relationship.
·Anthony Williams and Paul Sullivan also provided statements but they were illegible. These have been disregarded.
The basis on which the veteran and the Applicant made plans for, or engaged in, social activities
From about 1996 the Applicant and the veteran holidayed together.
According to Mr Traveller, the Applicant and the veteran also regularly attended their local RSL club together about once a week for about 12 to 13 years before the veteran died.
The Applicant gave evidence that she and the veteran had stayed in Brad’s home. The Applicant conceded though that she did not attend the veteran’s immediate family functions because she was never invited, not even to Christmas, birthdays or weddings. She did attend functions with the veteran’s sister’s family.
The sexual relationship between the people
The Applicant said she and the veteran were in a sexual relationship from 1995 to the early 2000s. From that time the veteran experienced erectile dysfunction, but they continued to engage in sexual behaviour.
A statement was provided by Brad’s mother-in-law, Shirley Shaw (‘Shirley’) who has since died. Shirley claimed she and the veteran slept in the same bed, including as late as October 2008 when their grandson was married, when they stayed together in a motel for two nights. The Applicant said she did not believe the veteran would have slept with Shirley. Curiously, the veteran shared a room with Shirley while her daughter, Sandra who also travelled to the wedding, had a room to herself. The veteran and Shirley were invited as “Shirley and Charlie Plummer” to their grandson’s wedding. Although the veteran had known Shirley since the early 1960s and they were related by his son’s marriage to her daughter in 1983, and became closer after their respective spouses died, both in about 1992, the veteran first mentioned the Applicant to Shirley at the time of their grandson’s wedding. He also reportedly told Shirley that he and the Applicant travelled together and obtained twin share discounts and described the Applicant as “travelling companion and a friend”.
Brad claimed that his father had friendships with many women, including Shirley.
Brad said that from about 1991 his father told him he was impotent and in about 2000 demonstrated. He said his father told him he was not interested in a relationship.
The nature of the Veteran and the Applicant’s commitment to each other
The length of the relationship
As detailed in paragraph [27] above, the Applicant and the veteran were in a relationship from 1995 until the time of the veteran’s death.
The nature of any companionship and emotional support that the veteran and the Applicant provided to each other
The Applicant claimed she and the veteran had a close and loving relationship and, other than work she spent most of her time with the veteran.
When admitted to North Shore Private Hospital in 2003 Brad was recorded as the next of kin and emergency contact. The veteran described himself as “widowed” and that he lived alone.
When the veteran was admitted to Royal North Shore Hospital in May 2006 the Applicant was noted as “person to notify”. Her relationship with the veteran was noted as “other”.
The veteran was transferred to North Shore Private Hospital and Brad was recorded as the emergency contact. The Applicant, the veteran’s “friend”, was recorded as another person to contact in the event of emergency. Her contact number was her mobile and a phone number which, on her evidence, was the phone number at Dee Why (which she she said she had retained for her son). In the nursing notes Brad was recorded as the next of kin, and rights and responsibilities were noted as having been discussed with him. In relation to that admission the Applicant was recorded as “other” and the veteran had described his marital status as “widowed”. Elsewhere the Applicant provided the veteran’s home number (as well as her mobile) as her contact.
On 17 October 2008 the veteran was diagnosed with cancer of the tongue and underwent radiation therapy. The Applicant claimed she was the veteran’s carer; before leaving for work each day she administered oral morphine to the veteran, assisted him to wash out his mouth with mouthwash, emptied his catheter bag and endeavoured to get him to drink a vitamin supplement. She made no claim to have her role financially recognised by Centrelink.
In March 2009, on the veteran’s admission to hospital Brad was recorded as next of kin and the Applicant as the emergency contact, and provided the veteran’s home number. She was described as “partner”. During the course of that admission, Brad, reportedly speaking on behalf of the veteran, described the Applicant as his father’s “partner” and that he could attend the hospital for extended periods while the Applicant was at work. The Applicant’s daughter was said to be available for occasional respite. The social worker recorded that the veteran was disoriented as to time and place, but Brad reported the veteran had been managing at home prior to his admission. It was recorded that the veteran lived with his partner. The social worker queried if there was conflict between “the son and his wife, and the patient’s partner”.
An occupational therapist noted on 16 March 2009 that Brad provided some information about the veteran’s social history. The veteran did not really participate in the conversation. The veteran’s profile was recorded as living with his partner Patricia.
On 17 March 2009 the social worker recorded that the veteran talked with “his partner, Pat” by phone. The social worker noted that Brad planned to be there during the day and that the Applicant was going to endeavour to work from home.
At the family conference on 18 March 2009, attended by Brad and the Applicant, she was described as the veteran’s partner and his main carer. Brad, at that meeting, was said to have acknowledged that the Applicant was “the number one decision-maker”.
After the veteran was discharged home Brad attended to his father’s needs – bandaging his arms and legs, taking him to the bathroom and helping him shower. He assisted with medication and changed his incontinence pad routinely. He did his father’s washing. He conceded that the Applicant assisted when she had time.
Whether the veteran and the Applicant considered that the relationship is likely to continue indefinitely
From about December 2005, the Applicant said she lived with the veteran full time and continued to do so up until his final hospital admission, and after he returned home for a short time before his death.
The veteran reportedly told his daughter-in-law Joanne that there was an envelope containing money for his funeral and that she and Brad were to organise the funeral. In accordance with his request he was to be buried in the same grave as his wife.
Whether the veteran and the Applicant saw their relationship as a marriage-like relationship or de facto relationship
The Applicant said she saw herself as the de facto wife of the veteran. The Applicant submitted that it can be inferred from the way they lived that the veteran also saw his relationship with the Applicant as being a marriage-like relationship. In his will, executed on 27 May 2005, however, the veteran quite specifically denied being in a de facto relationship with the Applicant, describing her there as “my friend”:
I have specifically omitted to provide in this my will for my friend PATRICIA BERGIN as she is a woman of independent means and is otherwise not in financial need.
We have never been in a defacto relationship and have agreed between ourselves not to make claim on each others (sic) estates.
The Applicant suggested that the solicitor who prepared the will was a friend of Brad’s or an “accomplice”, and that the veteran had signed the will without reading it because he “trusted Brad” that the purpose of the will was merely to make provision for his grandchildren in the event Brad predeceased him.
There was evidence, however, that the veteran was financially astute in that in 2003 he planned to assign the home to Brad but was concerned about the effect on his pension. The Applicant agreed in cross-examination that it was the veteran’s clear intention to leave the property to Brad and his family.
Brad said that his father told him that from about April 2008 “Pat is pressuring me for her to stay at my place”. He was concerned about the possible impact on his pension. Even after the Applicant had moved into the veteran’s home full time in August 2008, the veteran reportedly told Brad that the Applicant had a male friend and she was also in touch with her ex-husband.
CONCLUSION
It is trite to say that every relationship is different. In Staunton-Smith v Secretary, Department of Social Security(1991) 32 FCR 164; [1991] FCA 513, O’Loughlin J cited the comments of Watson J in In Marriage of Todd (No 2) (1976) 25 FLR 260, at 262-263:
What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such a dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
In Staunton-Smith. O’Loughlin J had endorsed the observations of Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128 and suggested (at [73]) that it was not sufficient to:
merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other, it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.
By all accounts the veteran was a loving family man who was devoted to his wife of many years, Judy, until she passed away in 1992. Similarly, he was devoted to his only child, Brad, and Brad’s family. He was gregarious with a wide circle of friends and acquaintances, both male and female.
I accept that in 1995 he started associating with the Applicant, and that they commenced a sexual relationship. The Applicant started staying at the veteran’s home with increasing frequency. Others saw her there very frequently, but it was not clear that they were able to say when she moved there full-time. It seemed to me that even the Applicant’s daughter was not clear when that might have been.

At some stage the Applicant moved into the veteran’s home completely but the veteran told others that her move was only temporary. Brad conceded that by August 2008 the Applicant lived there fulltime. The timing coincides with the cessation of the Applicant’s lease at the Strand, and her negotiation of a new lease with her son on the Central Coast.
The veteran had wanted to ensure that Brad would inherit the family home and in 2005 made a will to that effect, specifically excluding the Applicant. There was no evidence that the veteran lacked testamentary capacity. If I were to accept that the Applicant moved into the veteran’s home in 2005 as she claimed, that the veteran made a will expressly excluding her is, in my view, a powerful indication of his intention at that time. The will was not altered at any time. The veteran did not die suddenly and he had ample opportunity to review his testamentary intentions.
I accept that to associates of the veteran and the Applicant, notably those who saw them socially, they appeared to be “a couple”, especially as they may have conducted themselves in a flirtatious manner. I accept that they went overseas together but there was no objective evidence that this was as more than travelling companions.
The veteran was adamant with family members and friends that the Applicant was nothing more than a friend. He spoke to others about being wary of her. He also had other female friends, including Shirley, with whom, as late as October 2008, he shared a room at Brad junior’s wedding. It was clear that the Applicant was not accepted by the veteran’s immediate family and she conceded that she was not invited to family functions such as Christmas, birthdays or weddings. Joanne wrote that she had only met the Applicant three times – in about 1997, in 2000 and in April 2009 when Joanne came to Sydney to care for the veteran. This was despite the veteran being a frequent visitor to Harrington where Brad and his family lived.
When the veteran was diagnosed with his terminal condition in October 2008 the Applicant claimed she was the veteran’s carer. She made no claim to be recognised by Centrelink as his carer, notwithstanding that she was acquainted with Centrelink benefits, having previously sought Centrelink’s assistance when she was out of work for only a short period.
In March 2009, on the veteran’s final admission to hospital Brad was recorded as next of kin and the Applicant as the emergency contact, and provided the veteran’s home number. At that time she was described as “partner”. There is no evidence as to who completed the various forms contained in the hospital notes and who provided the information recorded. During the course of the admission, Brad, though, reportedly speaking on behalf of the veteran, described the Applicant as his father’s “partner”. At about the same time the social worker recorded that the veteran was disoriented as to time and place, and when there was a discussion a few days later with an occupational therapist the veteran did not really participate in the conversation. The veteran’s profile was recorded as living with his partner Patricia. The social worker recorded that the veteran talked with “his partner, Pat” by phone, but it is unknown if this was just the social worker’s understanding. At the family conference the next day, attended by Brad and the Applicant, she was described as the veteran’s partner and his main carer, but again this does not necessarily mean that that was how the veteran viewed the relationship. Brad, at that meeting, was reported to have said that the Applicant was “the number one decision-maker”. I note that this was in circumstances where Brad had left his home, job and family to come to Sydney to be with his father.
In summary, there was no joint ownership of real estate or other major assets and any joint liabilities or any significant pooling of financial resources, especially in relation to major financial commitments; and no legal obligations owed to each other. There was some sharing of day-to-day household expenses and a division of labour taking into account that the Applicant, and not the veteran, worked. From at least 2008 they lived together, although the arrangement, according to the veteran, was temporary. They had a sexual relationship. The veteran and the Applicant conducted themselves from time to time as a couple but there was no evidence that the veteran held himself out as being in a de facto relationship with the Applicant until the final hospital admission. The assessment of their friends and family about the nature of their relationship was mixed. They engaged in social outings together and travelled together, although the latter may have been for companionship and cost savings. The Applicant and the veteran had a long friendship, but it apparently was not exclusive, at least as far as the veteran was concerned. There was no evidence that the veteran considered that the relationship would be likely to continue indefinitely.
Taking all the circumstances together, I therefore do not find the Applicant to have been a member of a couple with the veteran.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
..............................[sgd]..........................................
Associate
Dated 15 April 2015

Date(s) of hearing 25 September 2014, 24 February 2015

Solicitors for the Applicant Fitzpatrick Solicitors Pty Ltd

Respondent In person

[2015] AATA 224

15 April 2015

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention

Reliance

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4953
Re	Patricia Bergin
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms N Isenberg, Senior Member
Date	15 April 2015
Place	Sydney

Date(s) of hearing	25 September 2014, 24 February 2015
Solicitors for the Applicant	Fitzpatrick Solicitors Pty Ltd
Respondent	In person