SANDRA JOAN DWYER and REPATRIATION COMMISSION

[2009] AATA 287

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 287

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1505

VETERANS'       APPEALS       DIVISION		)
Re		SANDRA JOAN DWYER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier C. Ermert, Member

Date27 April 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) C. Ermert

Member

VETERANS’ AFFAIRS – veteran deceased on service with Army Reserve – widow remarries – second marriage ceased with separation – application for partner service pension – eligibility ceases on remarriage – decision affirmed

Veterans’ Entitlements Act 1986  ss, 38(1), 38(3), 120(4)

Finn and Repatriation Commission 17 August 1990, QLD G48/1990

REASONS FOR DECISION

27 April 2009 Brigadier C. Ermert, Member

INTRODUCTION

1.      The applicant was married to Mr Graeme McNees.  Mr McNees served in the Australian Army between 1962 and 1971, including operational service in South Vietnam in 1968-69.  Mr McNees subsequently served in the Army Reserve and died on 31 May 1987 as a result of a vehicle accident occasioned during his participation in an Army exercise.  Although Mrs McNees made a claim for a widow’s pension at the time she did not proceed with it due to stress. 

2.      On 17 December 1994 the applicant married Mr Phillip Dwyer and they lived as a married couple until 2007 when they formally separated.  The applicant has now changed her name to her former married name of McNees.  Although the case is listed under the name of Dwyer, I will refer to the applicant as Mrs McNees for the remainder of this decision.

3.      On 8 August 2007 Mrs McNees lodged a claim for a partner service pension on the basis of her belief that had she been granted a widow’s pension at the time of Mr McNees’s death she would have retained that pension for life.  In her application Mrs McNees referred to her late husband’s good record of 20 years service to his country, including a tour of duty in South Vietnam, nine years in the Regular Army and 11 years in the Army Reserve culminating in his death on a military exercise.  Mrs McNees added that, while she had subsequently married Mr Dwyer, that marriage ended and she does not receive any financial support from Mr Dwyer. 

4.      A delegate of the Repatriation Commission refused the application for partner service pension.  On 15 November 2007 Mrs McNees sought a review of that decision.  On 10 January 2008 a senior delegate of the Repatriation Commission affirmed the decision and on 9 April 2008 Mrs McNees applied to this Tribunal for a review of that decision.

THE HEARING

5.      At the hearing Mrs McNees represented herself.  The respondent was represented by Mr G Purcell of the Advocacy Section of the Department of Veterans’ Affairs.  No witnesses were called to give evidence.

THE ISSUES

6.      The issue in this case is whether Mrs McNees is eligible to receive a partner service pension. 

7. Under the provisions of subsection 120(4) of the Veterans’ Entitlements Act 1986 (the Act) I am bound to determine the matter to my reasonable satisfaction; that is on the balance of probabilities.

Partner Service Pension

8.      Section 38(1) of the Act sets out the eligibility provisions for the partner service pension which relevantly include:

(1)Subject to subsections (1B) and (4), a person is eligible for a partner service pension if the person:

…

(e)is a person:

(i)     who is the widow or widower of a veteran who has rendered qualifying service; …

(3)If:

(a)a person is eligible for partner service pension because of paragraph (1)(c), (d), (e), (h) or (i); and

(b)the person becomes legally married to a person after the death of the veteran;

the person's eligibility under paragraph (1)(c), (d), (e), (h) or (i) ceases.

9.      In support of her case Mrs McNees quoted from an article in The Age newspaper of Saturday, 3 January 2009:

A man who had been in a relationship with a Second World War veteran had been awarded a partner’s pension or similar.  They had met in England in 1960 and commenced living together until the veteran’s death 10 years ago.  Although the partner stated that he had no need of the pension, he had applied on the grounds of discrimination.

10.     Mrs McNees asked why a person in this situation can be granted a pension when a person who was legally married then widowed through the husband’s service death was not granted a similar pension.

11.     Mr Purcell submitted that the applicant had remarried and was therefore excluded from eligibility by the operation of section 38(3) of the Act. 

12.     Mr Purcell went on to draw an analogy between the circumstances of this case and those which were the subject of the Federal Court decision in Finn and Repatriation Commission 17 August 1990, QLD G48/1990.  That matter considered the case of a veteran who had remarried and then was widowed again.  Pincus J said, at page 6:

However, since the more general question was argued – that is, the general question of the date on which one determines widowhood for the purpose of s.14 – I think I should express my view about it.  It is that the Board’s decision on the point seems to me correct.  I can see no sufficient justification for reading the expression “dependant of the deceased person” in s14 of the VE Act as extending to a person who once was, but is not at the date of the claim, such a dependant.  More particularly, it does not seem to me that a woman who once but no longer is the widow of the deceased veteran can make a claim under s.14.

13.     Mr Purcell submitted further that in the absence of any other words in section 38(3), the words themselves are unambiguous and must be construed under the normal tenets of statutory construction to mean what they say.  He continued that if the Tribunal were to fall back on a general construction of the legislation there is some assistance to be gained from the comments of Pincus J by way of analogy. 

CONSIDERATION

14.     My understanding of Mrs McNees’s argument is that her entitlement to partner service pension derives from her marriage to a veteran who is deceased; and that her entitlement should remain, notwithstanding her subsequent remarriage and separation.  Unfortunately for Mrs McNees, the provisions of the Act are clear. Section 38(3) expressly ceases eligibility for partner service pension when a person becomes legally married after the death of the veteran spouse.  I note Mr Purcell’s submissions in regard to the analogy of the matter of Finn but find that I have no need to draw on that analogy. 

15.     As a result, notwithstanding the deceased veteran’s fine record of service to his country, I am bound to apply the provisions of the Act and find that Mrs McNees is not eligible to receive the partner service pension.

DECISION

16.     The Tribunal affirms the decision under review.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision herein of

Brigadier C. Ermert, Member

Signed        Olympia Sarrinikolaou

Clerk

Date of Hearing:  27 January 2009

Date of Decision:  27 April 2009

Advocate for the applicant:          Self represented

Advocate for the respondent:       Mr G Purcell, Advocacy Section,

Department of Veterans’ Affairs