Shertock and Repatriation Commission

[2005] AATA 473

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2005] AATA 473

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/144

VETERANS APPEALS DIVISION		)              N2005/286
Re		MAXWELL SHERTOCK

Applicant

And REPATRIATION COMMISSION

Respondent

Tribunal     Senior Member, Mrs Josephine Kelly

Date of Written Reasons for Decision           6 May 2005

Date   4 April 2005

Place  Sydney

Decision

1.The reviewable decision of the Respondent made on 27 September 2004 to reduce Mr Shertock’s pension from the single to the married rate is set aside.

2.The reviewable decision of the Respondent made on 18 February 2005 to suspend payment of his pension is set aside.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

VETERAN’S AFFAIRS – service pension – marriage-like relationship – factors to consider when determining marriage-like relationship – decision set aside.

LEGISLATION

Veterans Entitlements Act (1986) ss 11A, 46E, 54A and 56EA

CASELAW

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

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of:

Senior Member Josephine Kelly

Signed:         Miss Sacha Keady
          ..................................................................................……………………………….

Associate

Date of Hearing  1 April 2005

Date of Decision  4 April 2005

Applicant Representative           Self Represented        

Advocate for Respondent          Nigel Bunn

WRITTEN REASONS FOR ORAL DECISION

6 May 2005 Senior Member, Mrs Josephine Kelly     

Background

1.      There are two proceedings before me N2004/1452 and N2005/286.

Application History

2.      The first decision was the “reduction decision”. On 6 July 2004, a delegate of the Repatriation Commission (the Commission) reduced Mr Shertock's service pension from the single rate to the married rate with effect from 6 July 2004 (T8, T9 and the following pages 44 to 47).

3.      On 27 September 2004, another delegate of the Commission affirmed the reduction decision.  On 20 October 2004, Mr Shertock applied to this Tribunal for a review of the reduction decision.

The Suspension Decision

4.      On 7 October 2004, a delegate of the Commission suspended Mr Shertock's service pension on the ground that he had failed to comply with a notice under Section 54A of the Veterans Entitlements Act (1986); that is,(the ”:VEA”). (T32)  (“the suspension decision”).

5.      On 18 February 2005, another delegate of the Commission affirmed the suspension decision. On 4 March 2005, the applicant Mr Shertock applied to the Administrative Appeals Tribunal for a review of the suspension decision.

6.      The Commission is the respondent in both proceedings.

Events leading to the present application

7.      On 13 April 2004, Mr Shertock wrote to the Department (T3) stating:

I have known Maria Gloria Gurgel Seijo for some 12 years, and until I had an operation with a heart valve transfer we lived apart.  While I was recently visiting Brazil, she offered that we should live together in her apartment in Sao Paulo.  I gratefully accepted, and we have the following arrangement.I pay her R$500 per month, and we share equally all expenses:  food, petrol ( I do not have a car and she drives me everywhere) gas, electricity, telephone, condominium, etcetera.

She has a military widow's pension and owns the apartment in which we live, but I do not share any of her income or assets.

I am 81 and offered that at some time I should go into a Commonwealth retirement home (now costing R$2,500 per month).  She said she would take care of me for the rest of my life.  She is not a partner as defined, but maybe she should be entitled to something as “carer”.

8.      R$100 is equal to approximately 50 Australian dollars. On 9 June 2004, the Department wrote to Mr Shertock, asking a number of questions concerning his living circumstances (T6, pages 39 to 40).

9.      To understand Mr Shertock's response to this request, it is important to understand that he believed he was furthering his application for what he considered to be a carer's allowance for Mrs Seijo.

10.     On 1 July 2004, Mr Shertock responded to the questions (T7, pages 41 to 43):

As to my relationship with my partner Gloria:

Q.       Is your relationship a marriage-type relationship?

A.In every respect, and I call her "my wife" and she "my husband" in any discussion.

Q.Do you have any joint ownership of bank accounts, property and other major assets?

A.In general, no, but we do have one joint investment where we place a small monthly sum for use in our Christmas vacation.

Q.What is the basis of any sharing of the day to day household expenses?

A.        Divided equally between us.

Q.       Do you have any legal obligations by one person to the other person?

A.        No.

Q.       On what basis is the housework distributed?

A.        I do cooking at times, but she does the rest.

Q.       On what basis do you engage in joint social activities?

A.As husband and wife.  I am part of all events in her life, visiting family, and she participates in social events with my English-speaking friends in the British Legion.

Q.The nature of any companionship and emotional support that you provide for each other.

A.This is the most important item.  Gloria and I have had a close personal relationship for 14 years, but we lived apart.  Since returning to Brazil, I have moved in with her.  It is impossible to imagine a better wife.  She looks after my every need and cares very much about my health.  I have no car, and she drives me everywhere and this is very difficult with the traffic congestion in a city of 20 million inhabitants. Especially helpful is her assistance with my health problems.She arranges all appointments for doctors, consultations and testing.  She sits in on the consultations, helping me understand what is being said as my Portuguese is not good and I have a hearing problem.  When in hospital, she spends the nights with me as is mandatory in Brazil.  She then buys all the medicines.  This month, June 2004, I attended seven medical visits at locations scattered around the city.  She is 10 years younger than I and I call her Santa Gloria.  I would appreciate some reward for what she's doing as I know this sort of home care is remunerated in other countries.

Q.       Do you consider the relationship to continue indefinitely?

A.For sure.  When we agreed to live together, I offered when a certain time came to move to the British Commonwealth Retirement Home.  She refused, and said she would take care of me until the end.  Incidentally, the home costs R$3000 a month.

11.     On 6 July 2004, on the basis of the above information, the Commission's delegate decided Mr Shertock was in a marriage-like relationship. His service pension was reduced from the single rate to the married rate.

12.     The maximum pension rate payable from January 2005 for a partnered person is $393 per fortnight.  Pursuant to Section 46E of the VEA, the rate of service pension payable to Mr Shertock depends on a number of factors, including his own income and assets and those of his partner.  Consequently, a notice was sent to Mr Shertock under Section 54A of the VEA requiring him to provide information regarding the income and assets of Mrs Seijo.

13.     Mrs Seijo, not Mr Shertock, has refused to provide that information. She has received legal advice not to provide it.  She also stated that she cannot divide her military widow's pension with Mr Shertock because the pension is designated for her heirs (T30).  Because of Mr Shertock's failure to comply with the Section 54A notice, his pension was suspended under Section 56EA of the VEA. .

Issues

14.     In the reduction decision, the issue is whether Mr Shertock was, on 6 July 2004, in a marriage-like relationship. In the suspension decision, the issue is whether, on 17 September 2004, Mr Shertock had failed to provide information requested under Section 54A of the VEA.

Statutory Context- Reduction Decision

15.     Section 11A of the VEA provides:

In forming an opinion for the purposes of this Act whether two people are living together in a marriage-like 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 any 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 married to 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 the people provide for each other; and

(iii)      whether the people consider the relationship is likely to continue indefinitely; and

(iv)      whether the people see the relationship as a marriage-like relationship.

Statutory Context - Suspension Decision

Relevantly, Section 54A of the VEA provides that:

The Secretary may give a person:

(a) to whom a service pension or income support supplement is being paid; or

(b) whose claim or application for a service pension or income support supplement is under consideration by the Commission or the Administrative Appeals Tribunal; or

(c)  who is receiving benefits under Division 12.

a notice that requires the person to give the Department or an officer specified in the notice a statement in writing about a matter that might affect:

(d) the payment to the person of the service pension or income support supplement; or

(e) the provision of benefits under Division 12.

There are requirements for the giving of the notice, the lodging of the response, and the consequences of failing to comply with the notice, which include a penalty, fine or imprisonment (Section 6). The offence under section 6 is one of strict liability (subsection 7). In section  8, a person does not commit an offence to the extent that the person is not capable of complying with the notice.

Principles regarding marriage-like relationships

16.     In Staunton-Smith v Department of Social Security (1991) 32 FCR 164, the Federal Court discussed the appropriate approach to making an assessment of a relationship:

It is not suggested that this list is exhaustive, nor will each of these subjects fall to be considered in every case.  It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of a fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination only after assessing the totality of the evidence and other material that is before it.

Contentions

17.     In relation to the reduction decision, Mr Shertock contends that he is not in a marriage-like relationship.  At the stay hearing on 10 March 2005, he stated:

The situation is that we do not share assets and income, and that has been the whole basis of my defence.

18.     The Commission contends that Mr Shertock is living in a marriage-like relationship with Mrs Sejio, that he has effectively admitted this (T7, pages 41 to 43) and that there is no evidence before the Tribunal to suggest that Mr Shertock is not in a marriage-like relationship.therefore, it contends the delegate's determination dated 6 July 2004 is correct.

Financial Aspects of the Relationship

19.     The Commission contends that while it accepts that Mr Shertock maintains financial independence, this is not conclusive of the absence of a marriage-like relationship.  The basis of the Commission's case is that Mr Shertock shares his day to day household expenses with Mrs Sejio and the contention that subsequently, he enjoys the benefit of living more cheaply than he would be as a non-partnered person.

20.     Mr Shertock's current income includes (T3, page 30) disability pension of AUD$266.76 per fortnight from the Department of Veterans Affairs, R$1160 per month from rental on a Brazilian apartment, and R$240 per month from the Brazilian Age Pension.

21.     On 1 April 2004, in relation to Mrs Seijo's income, Mr Shertock stated:

She has a military widow's pension and owns the apartment in which we live.

On 1 July 2004, in response to the question: “What is the basis for the sharing of the day to day household expenses?”, Mr Shertock said (T7, page 41):        “Divided equally between us”.

22.     Mr Shertock has provided the Department with a data sheet entitled Max and Gloria Monthly Expenses (T1, page 23).  It would appear that Mrs Seijo and Mr Shertock each pay on average R$1003 per month.  In addition, Mr Shertock pays monthly rent of R$500 to Mrs Seijo. Mr Shertock has indicated that if he were not living with Mrs Seijo he would move to a British Commonwealth retirement home, which he has stated, as set out earlier, at R$3000 per month, which is approximately double the amount of his current monthly expenses.

Suspension Decision

23.     Mr Shertock does not deny that he has failed to comply with Section 54A of the notice.  There is no evidence that the Section 54A notice was invalid at the time it was served.

24.     The Commission contends that while Mr Shertock continues to refuse to provide the information requested by a delegate of the Secretary of the Department, no service pension can be payable. That would not be the case if I find that Mr Shertock is not living in a marriage-like relationship and therefore the decision to reduce his pension to the marriage rate was incorrect.

25.     Mr Shertock says that the answers to the questions he gave in his letter of 1 July 2004 as set out above are true. He relies on two matters to establish that his relationship with Mrs Seijo is not marriage like. They are the financial independence of both him and Mrs Seijo, and that they do not have a sexual relationship.  They did have, but that ceased about four years ago.  Mr Shertock gave two reasons for that:  incompatibility in that area and his declining health.  Both those matters are not disputed by the Commission, although there was a suggestion, not elaborated upon, that some adverse inference was to be drawn from the fact that the sexual relationship ceased because of Mr Shertock's poor health, in part at least.

My Findings

26.     Mr Shertock and Mrs Seijo are undoubtedly financially independent.  They pay for their share of living expenses, and Mr Shertock pays Mrs Seijo rent.  They do not have a sexual relationship and have not had at least since 2000. They live in Mrs Seijo's apartment, and she does all the housekeeping, arranges and takes Mr Shertock to medical appointments, buys his medicines; in short, she cares for him completely.

27.     In addition to those matters, I find that Mr Shertock's health has recently deteriorated and that he does no cooking or other housework now, contrary to his July statement.  He is unsteady on his feet, although he can shower himself.  He and Mrs Seijo have separate bedrooms.

28.     In an undated letter (T53), which was apparently written after his letter of 1 July 2004 set out above, Mr Shertock explained that he had known Mrs Seijo for many years, although they had lived separately.  In February 2000, Mr Shertock had a heart valve transfer in Brazil, and for a year was in and out of hospital.  "During that time, Mrs Seijo gave me constant care." He returned to Australia in 2001 to receive his Australian pension and lived alone here for two years. When he returned to Brazil, Mrs Seijo invited him to live with her, which I understand was about 2003.

29.     In my opinion, before 2000, Mr Shertock and Mrs Seijo were not living in a marriage-like relationship. They lived separately and were independent financially.  On the evidence at that time they had a sexual relationship.  What is the difference now? The first difference is that they are not having a sexual relationship. The second difference, which is what the Commission is relying on, is that Mr Shertock and Mrs Seijo are living in the same apartment, clearly, on the evidence, to enable Mrs Seijo to care for Mr Shertock as his health declines. He has made it clear that the alternative is for him to be in a Commonwealth retirement home.

30.     Mr Shertock's honest answers in his letter of 1 July 2004 were given in the belief that he was furthering an application for some sort of allowance for Mrs Seijo because she was caring for him.  His description of them as husband and wife was in the context of her providing care for him; hence the phrase "It is impossible to imagine a better wife."

31.     Mr Shertock obviously appreciates the tremendous care and support Mrs Seijo is giving him. The financial relationship is independent except as described above. Mrs Seijo's refusal to provide financial information is contrary to Mr Shertock's interests, as it resulted in the suspension of payment of his pension; and if this application is unsuccessful, that suspension will continue.

32.     Mrs Seijo is clearly an independent minded woman who is not prepared to disclose her financial circumstances to assist Mr Shertock. Such an attitude is not consistent with their being in a marriage-like relationship, but is consistent with their financial independence.  Mrs Seijo has family responsibilities which obviously, in her opinion, come before Mr Shertock's interests.

33.     In my opinion, Mr Shertock is not living in a marriage-like relationship with Mrs Seijo.  That conclusion is based on all of the evidence before me.  Rather, she is his carer, and he is very fortunate that she is, which he appreciates.

Decision

34.     Accordingly, I set aside the decision of 27 September 2004 to reduce Mr Shertock's pension to the married rate.

35.     It follows, therefore, if that decision is set aside, the decision to suspend his pension affirmed on 18 February 2005 based on his failure to comply with a notice pursuant to Section 54A of the VEA must also be set aside.  It was made because the Commission had determined that Mr Shertock was living in a marriage-like relationship, which I have not found.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady

Associate

Date/s of Hearing  1 April 2004
Date of Decision  4 April 2005
Date of written reasons for oral decision:     5  May 2005
Applicant Representative  Self- Represented  

Advocate for the Respondent  Nigel Bunn