Rumsey and Repatriation Commission (Veterans' entitlements)

[2021] AATA 495

Rumsey and Repatriation Commission (Veterans' entitlements) [2021] AATA 495 (12 March 2021)

Division:VETERANS' APPEALS DIVISION

File Number:          2018/6696

Re:Noel Rumsey   

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:12 March 2021  

Place:Melbourne

The Tribunal sets aside the reviewable decision and in substitution decides that the Applicant and Mrs Rumsey are not a member of a couple within the meaning of section 5E(2)(a) of the Veterans’ Entitlements Act 1986.

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

R CAMERON SENIOR MEMBER.

Catchwords

VETERANS’ AFFAIRS – benefits and entitlements – rate of service pension – Applicant is legally married – whether Applicant and former partner are living separately and apart on a permanent basis – consideration of the factors in Staunton-Smith – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act1975 (Cth)
Social Security Act 1947 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

Cases

Murphy and Repatriation Commission [2017] AATA 2286

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

Secondary Materials

Compensation and Support Policy Library

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

12 March 2021

INTRODUCTION

1. The Applicant seeks review of a decision made by a delegate of the Respondent on 18 September 2018 which affirmed a decision previously made by a delegate that the Applicant and his wife continued to be regarded as members of a couple as defined in section 5E(2)(a) of the Veterans’ Entitlements Act1986 (Cth) (“the VE Act”) (“the reviewable decision”).

   ISSUE FOR DETERMINATION

2. The Tribunal considers the issue for determination is whether the Applicant, who is legally married to Moya Rumsey, is living separately and apart from her on a permanent basis within the meaning of section 5E(2)(a) of the VE Act.

   Section 5E(2) of the VE Act

3. Section 5E(2)(a) of the VE Act relevantly provides:

   (2) Member of a couple—general

   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

   …

   The approach to construing section 5E(2)(a) of the VE Act

4. Naturally in a consideration of this section the starting point is that the text assumes primacy. On a true and proper construction of the text it is apparent that the Tribunal as decision-maker must enquire whether the Applicant was living separately and apart from his spouse.

5. Both parties referred to a decision of O’Loughlin J in Staunton-Smith v Secretary, Department of Social Security[1] . That case involved the construction of a similarly worded section of the Social Security Act1947 which contained a definition in like terms of a “married person”. As was helpfully observed by the learned judge, in undertaking the enquiries as to whether the Applicant was living separately and apart the Tribunal should look for indicators that might have pointed in that direction. As was submitted fairly by counsel for the Respondent these enquiries do require the Tribunal to delve deeply in its consideration of the relevant matters and the applicable evidence.

   [1] (1991) 32 FCR 164.

6. O’Loughlin J enumerated several matters that should be considered by the Tribunal as decision-maker when applying such a section. It is appropriate to repeat those factors here.[2] They are:

   [2] In future when collectively referring to these "factors" they shall be defined as the "Staunton-Smith" factors.

   (a)What are the living, eating and sleeping arrangements in the household between the applicant and the other party?

   (b)Do the applicant and the other party have a sexual relationship?

   (c)Do the applicant and the other party have a social relationship?

   (d)What third parties (particularly children) are residing in the house and what is the relationship between each third party and the applicant and the other party?

   (e)What are the financial arrangements between the applicant and the other party? For example, are resources within the household pooled and household expenses shared?

   (f)Do the applicant and the other party hold themselves out as living separately and apart?

   (g)Do the applicant and the other party have a genuine belief that they are living separately and apart?

   (h)Does the existing relationship give rise to any moral, social or legal rights between the applicant and the other party?

   (i)Finally, what is the relationship between the applicant and the other party and does it contain any degree of permanence?

7. O’Loughlin J noted that the list is not exhaustive. Nor is it to be seen as some kind of checklist. The task of the Tribunal when embarking upon the fact-finding mission cast upon it in applying the section is to consider all of the evidence before it, treating the matters listed above only as indicators. It is an assessment of the totality of the evidence which is the platform upon which the Tribunal must make its decision.

8. The Respondent also contended that it is appropriate to consider the contents of the Compensation and Support Policy Library when addressing the question of whether two people are members of a couple within the meaning of the section. Reference was made to section 9.3.3 of that Library.[3]

   [3] Paragraphs 34 to 36 of the Respondent's Statement of Facts, Issues and Contentions are referred to concerning this submission.

9. That section of the Compensation and Support Policy Library specifically addresses circumstances that should be considered when determining whether a couple are separated under one roof. It recognises that such a separation can occur upon the breakdown of a relationship. Counsel for the Respondent emphasised a passage of that section which provided that each person will need to demonstrate that there has been an irretrievable breakdown in the relationship. It also requires the parties to provide an explanation for continuing to reside together. It is stated that a couple in an unhappy relationship or who separate for economic reasons or intend to reside together indefinitely are not likely to have grounds for being regarded as separated.

   THE EVIDENCE

10. There was documentary and viva voce evidence before the Tribunal at the hearing of this application.

11. The following witnesses gave evidence:

    (a)The Applicant;

    (b)Emma Couper;

    (c)Moya Rumsey;

    (d)Peter Burke;

    (e)Kirby Hughes;

    (f)Holly Rumsey; and

    (g)Max Ingles.

12. Further witness statements were received in evidence by agreement between the parties without needing them to attend to give evidence, from the following witnesses:

    (a)Jacob Bongers-Fraser;

    (b)Anne Maree Stapleton; and

    (c)Janice Laraine Prest.

13. Additional documentary evidence consisted of the T and the supplementary T documents, provided by the Respondent pursuant to their obligations under the Administrative Appeals Tribunal Act 1975 (Cth).

14. The Tribunal considers that all of the Applicant’s witnesses were truthful and credible in all respects. Mrs Rumsey and her three daughters together with Mr Ingles were particularly impressive witnesses. None of their evidence was subject to any deficiencies such as the propensity toward reconstruction or embellishment. Quite the contrary, they made concessions when they were called for, and (particularly in the case of the daughters) gave their evidence candidly when on occasion it was a very difficult, if not distressing experience for them. The Tribunal does not hesitate to accept all of their evidence.

    BACKGROUND FACTS

15. Several of the background facts in this matter are not controversial.

16. The Applicant and Mrs Rumsey were legally married in 1978; they remain so.

17. As and from 13 February 2003, the Applicant has been the recipient of an invalidity service pension. His wife has been the recipient of a partner service pension. Such pensions were paid on what is known as the “partnered rate”, because within the meaning of section 5E(2)(a) of the VE Act they were members of a couple.

18. The Applicant and Mrs Rumsey resided together at an address in Wandana Heights (“the Wandana Heights property”), of which at all times material to this application they have been joint proprietors, until 12 May 2008.

19. The Applicant and Moya Rumsey separated on 12 May 2008. Upon their separation Mrs

    
    

    Rumsey commenced residing at an address in Belmont (“the Belmont property”).

20. On 11 August 2008, a delegate of the Respondent made a determination that the Applicant and Mrs Rumsey had then separated due to Marital Breakdown. The delegate further determined that they no longer had a marriage-like relationship under section 11A and were not members of a couple under section 5E(2)(a) of the VE Act. Commensurate with this determination, the Applicant and Mrs Rumsey’s pensions were increased to what is known as the single rate.

21. The Applicant notified the Respondent by a letter on 12 July 2011 “that due to a change in circumstances, my wife Moya Rumsey will be co-habituating[4] my house located at the above address.” The letter also stated that she relocated to that address in Wandana Heights on 11 July of that year.

    [4] The Tribunal infers that the author meant "co-habiting”.

22. Subsequently, on 23 May 2018 it was determined by a delegate of the Respondent that the Applicant and Mrs Rumsey were members of a couple within the meaning of section 5E(2)(a) of the VE Act. It was after a request for a reconsideration of this decision that the reviewable decision which is the subject of this application was made.

    CONSIDERATION

23. Prior to embarking on a consideration of each of the Staunton-Smith factors, it is appropriate to consider some of the extensive history of the relationship between the Applicant and Mrs Rumsey which emerged at the hearing of this application. The Tribunal considers that the facts surrounding this case are such that the Staunton-Smith factors should not be considered in isolation or otherwise quarantined from the totality of the factual matrix before it.

24. The Applicant served in the Vietnam War. He suffered serious injuries in a mine explosion. The consequences of those injuries are with him to this day. They are both physical and mental. It is quite apparent to the Tribunal from having observed the evidence of the Applicant, his wife and children that he was not an easy man for his wife and children to live with. Both the Applicant’s wife and his children gave compelling evidence about these features.

25. The Applicant and his wife separated in May 2008. The reason for the separation was physical and emotional abuse that had taken place over many years. The form of that abuse varied. One of the daughters, Ms Couper, described witnessing the Applicant physically pushing his wife in anger resulting in huge bruises. She said that witnessing these incidents was distressing. There was also evidence from Mrs Rumsey and her daughters of behaviour amounting to belittling or verbal abuse which was often described as being “in their face”. Holly Rumsey described the Applicant’s behaviour as “controlling” which went on for years. In her evidence she said it reached a point for her mother where  “enough is enough, she was miserable and didn’t like the situation they were in.”[5] She also gave powerful evidence of acts of physical violence when the daughters were younger which she believed they were too young to fully understand. She stated that as they got older, they started to piece together what was happening. These tensions with the Applicant’s daughters were also amplified as they grew older and developed their own opinions on life. Such tensions were described in various ways including being demeaning and very stressful. Mrs Rumsey at one stage in her evidence stated that she felt possibly she had been more tolerant than she should have been. More specific details could be given of the evidence of each of the individual witnesses concerning this topic.  The Tribunal considers that the details of such evidence does not need to be repeated in these reasons. The Tribunal accepts this evidence. None of this evidence was really challenged when these witnesses were cross-examined.

    [5] Kirby Hughes in her evidence also used the term “enough is enough” to describe the predicament or position that Mrs Rumsey was in at the time of the separation in 2008.

26. The evidence of the three daughters was to the effect that their mother had endured this abuse for some years, and that they had encouraged her to leave their father because of their concerns for their mother as a result of her experiencing such abuse.

27. The separation occurred and Mrs Rumsey moved to the Belmont property. Mrs Rumsey and the daughters took very few possessions with them other than what they could load into a car. Later they arranged a van to take some more personal possessions. However, consumer durables and furniture were all left at the matrimonial home. They did not inform the Applicant where they had moved to.

28. Initially when she moved to the Belmont property, Mrs Rumsey and her daughters Emma and Kirby lived with her. Kirby tended to spend part of her time at Belmont with her mother and her sister Emma, who was also living in the property, and the rest of the time with her father at the former matrimonial home at Wandana Heights. Kirby, who was a very impressive witness, said that she split her time between the Belmont and Wandana Heights properties as she wished to maintain some level of relationship with her father after her parents’ separation.

29. The daughters made a contribution to the rent for the Belmont property. The evidence on this topic was not altogether clear. In cross-examination, Mrs Rumsey said that Emma paid the rent and she paid for utilities and sundry expenditure. Emma in her evidence, said that they all contributed to the rent. Kirby said that she did not remember contributing to the rent for the property. The “Schedule” to a residential tenancies lease dated 22 April 2008 was in evidence.[6] That document shows Mrs Rumsey together with Kirby and Emma as the tenants. The rental was $260 per week commencing on 12 May 2008. It was for a term of 12 months. Presumably, it was extended until such time as Mrs Rumsey returned to the Wandana Heights property. Subsequently, Emma’s partner, now husband, also moved into the Belmont property and lived there until approximately mid-2011 when they purchased their own home. On the preponderance of the evidence the Tribunal concludes that the daughters as co-tenants, and Emma’s partner, did make significant contributions to the rent of the Belmont property from time to time. It also concludes that Mrs Rumsey’s continued occupancy of those premises was dependent upon those contributions.

    [6] Document T 3 of the T documents.

30. When Emma and her partner together with Kirby left the Belmont property, Mrs Rumsey was not in a financial position to pay the rent on her own. Mrs Rumsey simply could not afford the cost of rent and outgoings for the Belmont property. This is evident as noted in the previous paragraph because she was dependent upon her daughters’ continued contribution to the rental to be able to stay at the Belmont property. Assisted by her daughters she looked for other properties in the vicinity, but they were beyond her means. She wished understandably to remain in the neighbourhood as her three daughters and now grandchildren, live close by.

31. Another matter that emerged from the evidence of, particularly, the daughters, was that other lower rental property options in certain other parts of Geelong were not viable because of safety issues. The daughters, and in particular Ms Hughes, gave evidence that safety issues were important to Mrs Rumsey. She emphasised that Mrs Rumsey wanted to live somewhere that was safe. She also emphasised that there are lower socio-economic areas in North Geelong for which the rental is lower, that would be very unsafe for a 70-year-old lady. The Tribunal also accepts this evidence.

32. It is perhaps appropriate at this juncture to also mention the question of a sale of the Wandana Heights home and a division of the proceeds between the Applicant and Mrs Rumsey. They are joint proprietors of the property. It appears that rightly or wrongly it has been treated largely as the Applicant’s property. Mrs Rumsey in one part of her evidence stated that she only discovered that she was a joint proprietor when she made a new Will in 2016. This evidence was corrected in cross-examination when a document signed by her and lodged with the Department of Veterans’ Affairs (“DVA”) in approximately 2013 revealing she was a joint proprietor, was put to her[7]. It is apparent that the consequences of joint proprietorship were not fully appreciated by her until far more recently. The evidence from several sources before the Tribunal about a prospective sale and division of the proceeds, was that it would not leave either of them with sufficient funds, or access to funds to purchase a property in the Wandana Heights or Belmont areas. In response to a question from the Tribunal, the Applicant extracted a most recent rates notice from the council which revealed that the capital improved value of the property was $800,000. Indeed, this would make it difficult for them to purchase any property in the Greater Geelong region at all. Mr Burke, the financial planner who gave evidence, went so far as to say that selling the house would be financially disastrous for both of them. He went further and stated that he would not advise them to do so. It does appear that neither party has seriously considered this option. Both of them have not consulted family lawyers largely on the grounds of potential costs being incurred, which the Tribunal considers is understandable.

    [7] Mrs. Rumsey had no independent recollection of the document.

33. On the evidence before the Tribunal, it seems more probable than not, that for financial reasons, or as one of the daughters stated in their evidence, as a matter of necessity and last resort, it was decided between Mrs Rumsey and her daughters that they would approach the Applicant with a view to her returning to live at the Wandana Heights home. Most likely the initial approach on behalf of Mrs Rumsey to the Applicant was made by one of the daughters. The daughters were concerned about Mrs Rumsey returning to the former matrimonial home and living under the one roof. However, there was a belief by the daughters that Mrs Rumsey had, by reason of living independently for some time, acquired mechanisms that would enable her to cope with, and be better prepared for, life under the one roof with the Applicant. Having separated, new boundaries or a new order between them had been established. This was largely echoed by Mrs Rumsey herself. The Tribunal accepts this evidence from them.

34. The Respondent contended that the Tribunal should not accept the explanation from Mrs Rumsey that she could not afford to continue living on her own. It will be apparent, that the Tribunal rejects this contention. It has done so because it accepts the evidence of Mrs Rumsey and her daughters. This evidence is also to some extent corroborated by the contents of the residential tenancy agreement that were in evidence, showing that Emma and Kirby were co-tenants under that agreement, and the findings of the Tribunal that they made contributions to the rent of the Belmont property. Also, in cross-examination it was not really put to Mrs Rumsey that the explanation given was not correct or in some way a contrivance to mask the true nature of her relationship with the Applicant to establish that they were not living separately and apart.

35. The Respondent contended that it was in effect illogical for Mrs Rumsey to return to live with the Applicant when he had over a protracted timespan subjected her to the physical and emotional abuse of the type recounted in the evidence before the Tribunal. Having accepted the evidence of Mrs Rumsey and her daughters (not to mention the Applicant himself) and also having had the opportunity to observe them give their evidence, the Tribunal, whilst understanding the submission of the Respondent along this line, rejects it. It is apparent that the Applicant did not contemplate that Mrs Rumsey (not to mention his daughters) might separate from him as she did in 2008. There is no doubt in the Tribunal’s assessment that it was a significant wake-up call for him. The Tribunal also accepts the evidence of Mrs Rumsey and her daughters that physically separating from the Applicant has given her a greater level of independence and capacity to deal with any future episodes of physical or emotional abuse that she might be subjected to from the Applicant. Tellingly, Mrs Rumsey’s evidence, which was not challenged, was that she has not suffered from any physical or emotional abuse from the Applicant since she returned to the Wandana Heights property. The Tribunal also accepts this evidence from her.

1. Discussions followed about the terms upon which Mrs Rumsey would return to the Wandana Heights home. In a section of her witness statement, the contents of which were not challenged, she articulated the conditions upon which she agreed to return. It is worthwhile addressing some of them as they do cover many of the factors identified by O’Loughlin J in Staunton-Smith.

2. The rooms in the house, with the exception of the kitchen and laundry, are divided. It was agreed there would be exclusive occupation of their rooms. Essentially, Mrs Rumsey occupies the upstairs rooms and the Applicant downstairs. In evidence were a ground floor and upper-level floor plan in which the rooms occupied by the Applicant and Mrs Rumsey are delineated in different colours.[8] They live and sleep in their separate parts of the dwelling. The Applicant and Mrs Rumsey confirmed this arrangement in their evidence which the Tribunal accepts. The daughters and Mr Ingles confirmed this. It is also corroborated in the evidence of Ms Prest, Ms Stapleton and Mr Bongers-Fraser.

   [8] The floor plan is attached to a letter from the Applicant to the DVA of 25 October 2018 and is document T 41 of the T documents. The same but a different coloured plan is attached to the Separation Questionnaire – Living Under the Same Roof signed by the Applicant on 6 February 2018, document T 35 of the T documents.

3. There was evidence from the parties and several of the daughters, not to mention Mr Ingles, that the Applicant and Mrs Rumsey use separate driveways on each side of the house and separate entrances to the premises.

4. The Applicant and Mrs Rumsey share the kitchen and laundry. However, they have separate refrigerators, pantries, crockery, cutlery, cooking utensils and sundry items. They are kept in separate cupboards. They do not use the kitchen or the laundry at the same time. They gave evidence, which the Tribunal accepts, that they cook meals separately and not at the same time.

5. This evidence concerning separate occupation, refrigerators and sundry items referred to above, was also largely corroborated in various respects by the several independent witnesses whose statements were in evidence. The contents of that evidence need not be reproduced. They made statements which were received in evidence unchallenged. They were Ms Prest, a registered nurse who attends the Wandana Heights property one day each week; Ms Stapleton, another registered nurse who attends approximately once or twice per week; and Mr Bongers-Fraser, a disability support worker who attends approximately once per fortnight.

6. They share the washing machine.

7. They undertake their own shopping individually.

8. They do not cook meals or eat together.

9. The Applicant and Mrs Rumsey do not mingle their finances. This issue occupied some considerable time in the hearing of this application. There was evidence before the Tribunal that the Applicant and Mrs Rumsey did have joint accounts from time to time. There is indeed one account that is still a joint account. In particular, there was a joint investment with an organisation known as “My North” which for many years had been jointly held between them. Mr Burke gave evidence that that investment was only split more recently because of issues being raised by the DVA.

10. Mrs Rumsey stated that she was unaware of joint investments until she was informed of the fact by Mr Burke following her return to the Wandana Heights property. She said that she never really understood financial arrangements during her marriage. The Tribunal accepts this evidence from her having had the opportunity to observe her. It is also consistent with the impressive evidence that Mr Burke gave about Mrs Rumsey’s financial capacities. He described her as having no interest in financial matters and as being “financially illiterate”. Her only concern was that the interest on the investments was paid. The Respondent placed considerable emphasis on the fact that joint financial facilities (whatever they were) were indicative of them being part of a couple for the purposes of construing section 5E(2)(a) of the VE Act. The contents of the Respondent’s Statement of Facts, Issues and Contentions under the heading “Shared financial arrangements of the Applicant and Mrs Rumsey” (paragraphs 49 to 59) are referred to. In short, the contention is that the financial arrangements identified in that section, which are established from the evidence before the Tribunal, involved shared management of their financial resources and shared planning for their financial future which are inconsistent with living separately and apart on a permanent basis. In addition to the joint accounts identified, there were also several significant transactions whereby money was transferred between those joint accounts during the period relevant to this application.

11. The Tribunal cannot accept this contention of the Respondent. It does so for several reasons. The starting point is the evidence referred to previously that Mrs Rumsey throughout her marriage simply has not concerned herself with, nor more likely than not, had the capacity to understand what financial arrangements were in place. They were left to the Applicant. The joint accounts in their various forms were created well before the 2008 separation. This arrangement continued whilst Mrs Rumsey resided in the Belmont property and for some time after her return to the Wandana Heights property. It simply would not have occurred to her to have investigated what financial arrangements were in place and to have appreciated the legal and factual consequences of joint accounts and that it might be better to close, sever or otherwise realise them.

12. As was confirmed by Mr Burke, from the time of the separation in 2008 Mrs Rumsey lived off the proceeds of her partner pension with a top up in very limited amounts from the income stream generated by the investments. This arrangement continued when she resumed living at the Wandana Heights property in 2011. Subsequently, as was particularly observed by Mr Burke, save and except for one joint account, the remaining joint investments have been severed or, as he put it, “split” by the Applicant and Mrs Rumsey. The remaining joint account apparently is a Suncorp account. The Applicant gave evidence that this account has not been closed because he needs it to process his pension payments and that bank does not have a branch open to the public in Victoria. Another reason why the Tribunal does not accept the contentions of the Respondent concerning the financial issues is that Mr Burke pointed out that by maintaining joint investments, particularly the My North account, it avoided the unnecessary duplication of fees. The Tribunal accepts this.

13. In Staunton-Smith, O’Loughlin J cautioned against being misled by proven financial dependence.[9] His Honour also approved of a consideration in a previous decision that financial arrangements should not be taken in isolation and elevated to a particular level of importance to determine the nature of a relationship. The Tribunal agrees with this approach. Commensurate with these observations, in this matter the Tribunal does not consider the fact that the Applicant and Mrs Rumsey conducted joint accounts in their various forms is determinative of the question that they are a couple for the purposes of section 5E(2)(a) of the VE Act. What occurred with respect to financial matters pre-separation continued post-separation, both whilst Mrs Rumsey was living at the Belmont property and upon her return to the Wandana Heights property.

    [9] (1991) 32 FCR 164 at 172.

14. Another matter concerning finances that should be mentioned concerns the financial arrangements between the Applicant and Mrs Rumsey for payment of rates and utilities. They agreed that Mrs Rumsey would pay contributions towards them. Prior to the reduction of her pension in about May 2018, she usually paid $120 per week to the Applicant. She was unable to make such contributions after the reduction due to her financial position. She has agreed to pay arrears if this application is successful. The formality of this arrangement seems to the Tribunal to count against a conclusion that they are members of a couple. The strict lines of demarcation in a financial sense have the indicia of a commercial arrangement as opposed to one of a domestic nature. It does not seem any different to the situation that might apply to an arm’s length residential tenant renting a room, or living space in residential premises in a conventional sense. The Tribunal agrees with these submissions of counsel for the Applicant that the relationship is one of housemates.

15. The Tribunal also has to reject the contention advanced by the Respondent that the Applicant and Mrs Rumsey have the financial means to permanently separate and go their individual ways. The Respondent contends the evidence supports the decision as being a joint decision to remain living together and share financial interests in a manner that is inconsistent with living separately and apart on a permanent basis. The evidence as it is, particularly from Mr Burke, is to the contrary. It will be recalled that Mr Burke said such a move involving a sale and division of the proceeds of the Wandana Heights property would be financially disastrous for them. They would not be able to secure comparable accommodation without recourse to loan funds which they would not be able to obtain as they no longer work and are of relatively advanced years. The Applicant and Mrs Rumsey are both over 70 years of age.

16. The Applicant and Mrs Rumsey are responsible for cleaning their own rooms. A cleaner funded by the Respondent cleans and vacuums rooms used by the Applicant. That cleaner does not clean any of the rooms occupied by Mrs Rumsey. The cleaner is Mr Bongers-Fraser, who made a statement that was in evidence. That statement is referred to in its entirety. He states that in the time he has attended the Wandana Heights property, he has not observed any evidence that the Applicant and Mrs Rumsey are cohabitating. The Tribunal accepts this evidence.

17. There is also the evidence that the Applicant has personal care nurses who assist him in various ways. Those nurses, Ms Preston and Ms Stapleton, gave evidence by way of witness statements which of course were unchallenged. The contents of both of those statements are referred to in their entirety. They need not be repeated. Both those statements support the contention of the Applicant that he and Mrs Rumsey are living separately and apart.

18. Insofar as they have not been addressed, the Tribunal will now deal with each of the Staunton-Smith factors.

19. The living, eating and sleeping arrangements in the household have been well addressed previously.

20. Both the Applicant and Mrs Rumsey gave evidence, which the Tribunal accepts and it was not challenged, that they do not have a sexual relationship.

21. The Applicant and Mrs Rumsey have no social relationships save and except for two family occasions during the year, namely Christmas and Easter. From the evidence given by all concerned, particularly the Applicant’s daughters, whilst the Applicant enjoys those occasions it appears in reality that his attendance at them with his wife can at best be described as remote.

22. There are no third parties residing in the house.

23. The financial relationship has been addressed in some length above. Those details are referred to and repeated. Perhaps the only other matter that should be referred to is that in 2016, the Applicant and Mrs Rumsey made Wills in which they left the residue of their estates directly to their children.

24. The Applicant and Mrs Rumsey gave evidence that they do hold themselves out as living separately and apart, as indeed they do. This was corroborated by their daughters, Mr Ingles, Ms Prest, Ms Stapleton and Mr Bongers-Fraser. The Tribunal accepts this evidence. Indeed, there was a portion of Ms Stapleton’s evidence on this topic that is quite compelling. She gave evidence that there is no interaction between them. She has never seen them conversing. She has seen occasions when they have been in the same room but essentially ignore each other. Critically, she stated that Mrs Rumsey takes no role in the care for the Applicant nor has ever been involved in the care assessment of him that she has undertaken. The DVA requires monthly care assessments. This should be viewed with a degree of realism in that it seems almost impossible to believe that if the Applicant and Mrs Rumsey were living as members of a couple in the relevant sense, that she would not have participated in such an assessment given the range of issues confronting him. Ms Stapleton observed that she nurses other DVA patients and typically their partners are involved in such assessments, even if it is limited to listening to the care needs which need to be provided.

25. Mr Ingles, who the Tribunal found to be a thoroughly impressive witness, verified the contents of a letter that he wrote to the DVA on 16 April 2018.[10] In that letter, he stated that he could say from his observation the Applicant and Mrs Rumsey lead totally separate lives. He has been a visitor to the Wandana Heights property from time to time over many years. He stated that from his observations when present at that home, he is absolutely certain that there is no interaction between the Applicant and Mrs Rumsey in any way in their daily actions. The Tribunal accepts his evidence completely.

    [10] Document T 37 in the T documents.

26. In Murphy and Repatriation Commission,[11] Senior Member Kelly found that the parties were members of a couple. One of the critical reasons for reaching this decision was that it was held that Mr Murphy’s health concerns had come to dominate their lives. Similarly, with Mrs Murphy who had serious health issues her husband had assisted her. The strong commitment to care by the wife for the husband was found to be a most important factor in determining that they were members of a couple. Here the case is diametrically opposite. The Applicant and Mrs Rumsey take no interest in each other’s health and welfare and are left to their own devices. This fact points towards them living separately and apart.

    [11] [2017] AATA 2286.

27. The Applicant and Mrs Rumsey gave evidence that they genuinely believe that they are living separately and apart. Insofar as it is relevant to this factor, it was also corroborated by their daughters. This was not really challenged. They all were credible and truthful witnesses. The Tribunal accepts their evidence.

28. As for any moral, social or legal rights between the Applicant and Mrs Rumsey, they fall into two categories. Firstly, there are family law rights which have not been exercised. Secondly there are rights that each party have concerning the matrimonial home as joint tenants. To some extent these rights intersect as they involve property. They both gave evidence as to why they have not taken any steps to either get divorced, seek a property settlement under the provisions of the Family Law Act 1975 (Cth) or sever the joint tenancy. The Applicant gave evidence that at the time he made his Will in 2016, he was informed by the solicitor of the nature of a joint tenancy and that it could be severed. Mrs Rumsey understood the consequences of joint tenancy and particularly the doctrine of survivorship. However, she really thought the key aspect of it was that either party could stay in the Wandana Heights property until it was sold; which as a matter of law is strictly correct. The Tribunal considers that this factor does not point towards them not living separately and apart. Their evidence has been accepted by the Tribunal. Little more can be said about it.

29. The totality of the evidence outlined above (which need not be repeated) reveals to the Tribunal that the relationship between the Applicant and Mrs Rumsey is such that their separation is one of a complete degree of permanence. The Tribunal is satisfied that they are living separately and apart on a permanent basis within the meaning of section 5E (2) of the VE Act. As to what the relationship is between the Applicant and Mrs Rumsey, it is as noted above probably best described as housemates or arm’s-length occupants of the Wandana Heights property. As the Tribunal pointed out in the course of the hearing, as joint tenants they have a legal right of occupancy, no one has disputed otherwise. The Tribunal accepts Mrs Rumsey’s evidence that her presence in the premises is one of financial necessity which enables her to live in a manner similar to which she has over many years, geographically proximate to her daughters and grandchildren. This is fully understandable.

30. By way of completeness, the Tribunal considers that the circumstances of separation under one roof referred to in section 9.3.3 of the Compensation and Support Policy Library have been established. The Tribunal is satisfied that there has been an irretrievable breakdown in the relationship between the Applicant and Mrs Rumsey. It considers for the reasons outlined above that an explanation for continuing to reside together has been furnished which is accepted by the Tribunal. It should be recorded that they did not separate for economic reasons. The separation was precipitated by reason of the physical and emotional abuse that Mrs Rumsey suffered. They separated in 2008 when she left the Wandana Heights property. The separation has continued since then.

    CONCLUSION AND DECISION

31. By reason of the foregoing consideration, the Tribunal finds that the Applicant and Mrs Rumsey are living separately and apart on a permanent basis. Therefore, the correct and preferable decision is to set aside the reviewable decision and in substitution therefore decide that the Applicant and his wife are not a member of a couple within the meaning of section 5E(2)(a) of the Act.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Associate

Dated: 12 March 2021

Dates of hearing:	19, 20 and 21 January 2021
Counsel for the Applicant:	Carolyn Symons
Solicitors for the Applicant:	Williams Winter
Counsel for the Respondent:	Julia Lucas
Solicitor for the Respondent:	Australian Government Solicitor