Steward and Repatriation Commission
[2008] AATA 714
•25 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 714
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0239
VETERANS' APPEALS DIVISION ) Re CLAYBOURNE STEWARD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date25 July 2008
PlaceBrisbane (heard in Townsville)
Decision
For the reasons given orally after the hearing, the Tribunal varies the decision under review to provide that the applicant was a “member of a couple”, and therefore entitled to payment of service pension at the married rate, on and from 1 January 2006. This is a provisional date subject to submissions of the parties, to be filed in the Tribunal within 14 days. If no submissions are filed, the date of 1 January 2006 will take effect.
....................[sgd]..........................
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – rate of service pension – whether applicant a member of a couple – decision under review varied
Veterans’ Entitlements Act 1986 (Cth), ss 5E, 5R, 11A
Social Security Act 1991 (Cth), s 4Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Lynam v Director General of Social Security (1983) 52 ALR 128
Marei v Department of Education and Workplace Relations [2007] FMCA 458REASONS FOR DECISION
25 July 2008 M J Carstairs, Senior Member 1. Throughout the period 1997 to 2006, the respondent paid Mr Steward service pension at the single rate. On 8 June 2007, a delegate of the respondent made a decision that Mr Steward was a married person and “member of a couple” throughout this period. The effect of this decision is that Mr Steward has been assessed with a debt in excess of $100,000.
2. The question I must decide is whether Mr Steward was a “member of a couple”, as defined by the Veterans’ Entitlements Act 1986.
3. The decision was handed down orally on 25 July 2008. The respondent requested reasons to be given in writing. These reasons answer that request.
BACKGROUND
4. Mr Steward and his wife married in 1975. There are two children of the marriage, daughters who are now aged about 29 and 31. The daughters lived at home with the parents. The older daughter lived at home until about 2000[1], when she left to undertake studies at the Police Academy. The younger daughter left some time after that, perhaps two years or so later.
[1] Exhibit R2 at 4 – medical report of Dr J Gibson.
5. Mr Steward is a veteran who served in Vietnam and now receives special rate of pension. He lodged his first claim for service pension in 1996. In his claim form Mr Steward stated[2], amongst other things, that he was married but was living apart because of illness or infirmity. However he also marked that his partner wished to receive the service pension as a dependant. She provided information about her bank accounts and wages from Townsville Hospital in accompanying documents[3].
[2] Folio 82-88; T16.
[3] Folio 101-102; T16.
6. Mr Steward’s request for service pension was not granted to him at that time. It was only when he made another claim in early 1997 that he was granted service pension at the single rate.
7. The events that brought attention to Mr Steward’s service pension and led to the raising of a debt appear to start with a visit Mr Steward made to the Department of Veterans’ Affairs in July 2006. During this visit, Mr Steward mentioned that he had sold his house and was building another. Mr Steward had not previously advised the Department of this. When challenged on this, the record taken by the officer at the Department of Veterans’ Affairs at the time was as follows[4]:
He insisted it was “Mum’s” money (Mum being the term he uses for his wife) and since she’s building “her house” with it it shouldn’t affect his pension.
[4] Folio 13; T3.
8. From that time, the Department re-examined Mr Steward’s entitlement to payment at the single rate, it being evident that Mr Steward was occupying the house with Mrs Steward.
9. However, this was not the first occasion on which the matter of Mr Steward’s service pension had come to the respondent's attention. There was reference in the documents to a denunciation from a member of the public in July 2003, to the effect that Mr Steward was living with his wife[5]. This was fully investigated by the Department, and Mr Steward and Mrs Steward were interviewed. However it does not appear that the matter was taken further. Mr and Mrs Steward heard no more about it. I was given no explanation at the hearing, about why the matter was left to languish for a further two years; and why no further contact was made with Mr Steward to advise the result of the investigation.
[5] Folio 179, T31.
10. A further year passed before Mr Steward was served with a notice, dated 8 June 2007, advising him that he was required to repay $102,135.74, within 28 days.
SUMMARY
11. The period of the debt now raised in this case is quite lengthy, spanning from 1997 to 2006. Taking into account the evidence as appears from the documents and from Mr and Mrs Steward, it seems that the relationship between the parties altered over the period. I was satisfied that it was correct to treat them as living separately and apart while they lived at Hammond Way, until they made a decision to sell that home and build another together. From that time, it seems to me that they had recommitted to their marriage and intended to remain together indefinitely. The date of effect in that regard must be related to when they started to put in place their plans to sell and to build a new home together.
THE LEGISLATION
12. The Veterans’ Entitlements Act 1986 (the Act) provides that a person who is married to another person will be considered a member of a couple, if the requirements of s 5E(2)(a) of the Act are met (and as a result will not be entitled to be paid at the higher, single rate of payment). That sub-section provides as follows:
5E(2) A person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not living separately and apart from the other person on a permanent basis;
13. The parties referred me to the Federal Court decision of Pelka v Secretary, Department of Family and Community Services[6] as providing a reference point for the task of assessing whether a person is a member of a couple. French J described the task of assessing a relationship as requiring the decision-maker to[7]:
[6] Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
[7] Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 555-556.
1. … have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2. … have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people; and
(e) the nature of the people’s commitment to each other….
14. I doubt that the approach mandated in Pelka is as applicable to a case arising under the Veterans' Entitlements Act 1986. The wording of s 5E(2) of the Veterans' Entitlements Act, with reference to those who are legally married, is noticeably different from the wording in s 4(2) of the Social Security Act 1991. The Social Security Act directs that whether people are married or not, the same set of factors must be applied, and this is, as set out in Pelka, by reference to all the factors identified in s 4(3) of the Social Security Act. Those provisions in s 4(3) of the social Security Act are mirrored in the provisions in s 11A of the Veterans' Entitlements Act. However the Veterans' Entitlements Act only mandates that those factors be applied if the people are not legally married to each other.
15. This does not make Pelka irrelevant to the task at hand, because assessing the nature of relationships requires balancing a number of factors relevant to determining the nature of relationships. Acknowledging the different expression in the two Acts suggests that the test to be applied in the case of persons who, as here, are legally married, is more closely aligned to that set out in decisions such as Staunton-Smith v Secretary, Department of Social Security[8]. In that regard, the analysis will always entail considering and weighing up several aspects of what goes to making a marriage and what distinguishes a marriage relationship from others, such as relationships of friendship, companions, carers, or flatmates. In Staunton-Smith the following was said[9]:
The responsibility of the 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 whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based.
[8] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
[9] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170.
16. One proposition is clear from the authorities in this area of the law. It is that, in cases involving legally married people, the legislative test does not entail looking for the indicators that suggest a marriage-like relationship, but addresses whether the people are “living separately and apart” (Staunton-Smith[10]).
[10] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170.
17. I shall therefore deal with the various aspects of the relationship with reference to financial aspects, social and sexual aspects, the nature of the household and the commitment between them in order to consider the Stewards’ relationship as a whole. This is the approach endorsed in Pelka.
THE PERIOD AFTER 1997
18. Some background to the initial claim is useful here. Mr Steward’s first claim was made in 1996 and Mr and Mrs Steward each completed a “Domestic Status Questionnaire”. In the questionnaire completed by Mrs Steward, she provided the following information about her relationship with Mr Steward[11]:
[11] Folio 104-107; T17.
§ both paid for food and both did the shopping;
§ both did the laundry and both cleaned the house;
§ both prepared meals;
§ Mr Steward took care of the gardening and other household chores;
§ they would sometimes eat together, occasionally watched television together, but rarely went out together socially;
§ they would only provide emotional or financial support for each other in a crisis that concerned their children;
§ they owned property jointly, but did not have joint bank accounts or investments; and
§ they were beneficiaries of each other's wills but not each other’s life insurance policies.
19. Mrs Steward acknowledged in the questionnaire that neighbours and the general community probably would consider them to be still married. She observed that she regarded their marital problems as personal matters and not the community’s business. She advised that she and her husband had separated two years previously, although they continued to reside in the same house “Because the children would have a home. And it's cheaper in the long run”[12]. When questioned why they should not be regarded as a married couple she answered because they did not sleep together.
[12] Folio 106; T17.
20. Mr Steward’s responses were to the same effect[13]. He observed that they continued to reside in the same house because they owned it and could see no reason for one or the other to pay rent elsewhere. When he was asked why no legal action had been taken to terminate the marriage, he responded that this in consideration of their children.
[13] Folio 108-111; T17.
21. The respondent assessed this information and decided not to accept that they were in fact living “separately and apart”. Mr Steward was advised in writing[14], and was told in the letter that his wife's income would have to be taken into account in assessing his claim. Her income proved to be in excess of what would allow him to be paid service pension at all. Mr Steward next claimed service pension the following year. This time he stated that his marital status was separated. He was then renting elsewhere, at a different address from his wife. But, he acknowledged that his contribution towards the support of his spouse was by maintenance of the house and the yard at the home (Hammond Way) they jointly owned. Accordingly, other checks having been carried out with his wife, the respondent paid him service pension as a single person.
[14] Folio 114; T20.
22. There was limited documentary material relating to this period. However, what was available was provided in the T-documents. I rely on that material and the evidence given at the hearing, in forming the view that I have on the relationship in this period.
23. Before doing so, I would observe with respect to both Mr and Mrs Steward, that I regard them as giving honest accounts in their evidence. I do not consider that they have set out to deceive or misinform the Department. Nor do I understand Mr R Douglas to suggest otherwise. This is not to say that they have always understood the questions that have been asked of them. And, I apprehend they have no real comprehension of what it means in a legal sense to be married persons “living separately and apart”. I perceive this has presented a problem for them in their communications with the Department of Veterans’ Affairs.
24. However the task is to assess the relationship in that time by considering its various facets. With respect to financial aspects of the relationship, in the period from 1997, Mrs Steward in particular had effected a number of changes to more effectively draw a line of separation in the marriage. Mrs Steward said, and I accept, that she took steps to change the terms of her will to provide that her children would be her beneficiaries, not Mr Steward. She also had the title to the property at Hammond Way changed from a joint tenancy to a tenancy in common in equal shares. She said in her oral evidence, and I accept, that when they were married they had joint bank accounts but for the past 10 years they had been separate accounts.
25. Mr Steward had moved out of the jointly owned home some six weeks prior to the claim. It seems that he returned at some stage, and ought to have advised the Department when this occurred. However it nevertheless should be observed that Mr Steward was living away from the house at several points during this period, some of which has been advised to the investigators who carried out the review in 2004. He told the investigators that he would go to Hammond Way on weekends to wash clothes, but during the week he was living and working on properties out of town at different locations. I was satisfied that this arrangement was symptomatic of the breakdown of the marriage at this time. As Mr Steward expressed it, they could not live together because they could not see eye to eye.
26. I accept the evidence that the likely date of return was sometime in 2000[15] and I accept that his wife expected him to pay, into her account, $300 per fortnight towards household expenses. When Mr Steward was there at the house they maintained separate bedrooms and had little interaction with each other. I am prepared to accept that throughout this period there was no social aspect to their relationship. Mr and Mrs Steward agree, and I accept, that they have not enjoyed a sexual relationship for many years.
[15] Folio 180; T31.
27. As to other aspects of the relationship, particular insight can be gained from the notes of the Departmental investigators who interviewed the parties after the public denunciation in 2003. I am prepared to accept based on the evidence from the investigations undertaken in 2004 that the features of commitment that mark a marriage were absent. Mrs Steward then observed that if there was illness or a personal crisis, she would rely on her daughters, who would look after her. She would not look to her husband for support of that kind.
28. This is not to say that the parties might not have held out some hope of reconciliation. Mrs Steward said she had sought counselling. However I accept that these people honestly believed that their marriage had broken down and had no future. There was no joint social activity and they were living as separate people who had minimal interaction even when at the house together. I accept Mrs Steward’s evidence that she allowed Mr Steward to remain at, or come and go from, Hammond Way out of her genuine fear that Mr Steward could end up in destitute circumstances. In that regard the summonsed medical records were instructive.
29. In 2000, Mr Steward was admitted for one month to the psychiatric unit at Townsville Hospital. The hospital record of that admission stated that Mr Steward’s mental health had markedly deteriorated and he was taking excessive amounts of alcohol, about 20 to 30 pots per day. Other medical reports referred to a lengthy history of Mr Steward’s anger at home and to marital problems, and referred to emotional estrangement dating from the late 1990’s. His doctors were concerned that he was a potential suicide risk[16]. In other words there was substance to what Mrs Steward said were her concerns about the possible harm to which Mr Steward might come if he did not have a roof over his head.
[16] Exhibit R2.
30. As was stated in Staunton-Smith[17]:
… it is 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.
[17] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 173.
31. In this period, weighing all the factors, I was satisfied that Mr and Mrs Steward were living separately and apart. In that regard I considered that the elements of the marriage had broken down and they were effectively leading separate lives and that only Mrs Steward’s religious concerns led her not to divorce. However Mrs Steward had taken a number of significant steps to sever what would be expected to be in place in a marriage. In 1998 she had taken legal steps with respect to the jointly owned property, changing the ownership from joint tenants to tenants in common. She had changed her will to make the daughters her beneficiaries and not her husband. In other respects their finances were separate, and the features of mutual support and companionship were absent.
32. As I see it, matters must be viewed rather differently in Mr and Mrs Steward’s relationship when they made the decision to commit to living in a new house together, selling the existing home and planning a place that would be more suitable for their senior years. The relationship in my view takes on a different dimension when Mr and Mrs Steward plan for and put in place an ongoing future together. There would be no need to do this if indeed the marriage was irretrievably broken down. They might simply have divided the proceeds of the sale of Hammond Way, and made separate arrangements as to the future. In the past, when asked why they continued to reside under the one roof, they had offered the presence of the daughters at the home as one explanation; however the daughters were adults and, in any event, had left the family home in the early 2000’s.
33. However, once again, it is not one feature that will decide the nature of a relationship and all matters must be taken into account and weighed and balanced as described in Pelka and in cases such as Lynam v Director General of Social Security[18].
[18] Lynam v Director General of Social Security (1983) 52 ALR 128.
THE MOVE TO DARTMOOR STREET
§ Financial aspects of the relationship
34. One feature of the financial arrangements for the household has for a long time been that Mr Steward has for a number of years paid his share of household expenses by transferring his pension money to Mrs Steward. The regularity of these payments was demonstrated in the bank records[19]. This transfer of money into Mrs Steward’s account might suggest “pooling” of finances in the manner referred to in Pelka, where French J referred to this as putting into a common stock or fund.
[19] Exhibit R2.
35. Mr Steward provides the money which goes into Mrs Steward's bank account, which then enables her to monitor and control the expenditures so that they can be directed to the outlays of a common household. Such an arrangement might be viewed in two ways. In the case of a couple who were no more than flatmates or friends, such an arrangement would be unusual (whereby moneys were transferred into another person’s bank account in order to pay bills or deal with other household expenditure). However it seems relevant to take into account Mr Steward’s serious alcohol problem, which may account for this financial arrangement developing over time. From Mr Steward's evidence it seems that he regarded financial arrangements as within Mrs Steward’s domain, not his. It is an arrangement that has been in place for many years, as I understood the evidence, well before the marriage is said to have broken down.
36. The difficulty with assessing matters of “pooling” was addressed by Barnes FM in Marei v Department of Employment and Workplace Relations[20]. It was there observed “pooling” involves something more than mere financial cooperation or separate contribution to different elements of household expenses[21].
[20] Marei v Department of Employment and Workplace Relations [2007] FMCA 458.
[21] Marei v Department of Employment and Workplace Relations [2007] FMCA 458 at [29].
37. I accept the arrangement directing money through Mrs Steward's account was effecting separate contributions to different elements of household expenses and not pooling. It was cooperation which as French J. observed in Pelka[22] does not take a relationship on its own very far down the path towards characterising a marriage. Indeed, if, as Mr and Mrs Steward have observed in the past, this was a payment of board on Mr Steward’s part, it would have been paid this way, that is, to her.
[22] Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 557.
38. From the oral evidence it seems that Mrs Steward is the beneficiary of Mr Steward’s will, which, he said, was drawn up when he was a serviceman in the 1970’s. However, as noted above, Mrs Steward drew up a new will in 1998 in which Mr Steward is not a beneficiary of her estate[23]. The evidence did not indicate that she was claiming for him as her dependant for tax matters. However the parties did take out a joint account, however briefly, in order to secure finances for their new home (Dartmoor St) in 2006.
[23] Exhibit A1, Annexure 2.
39. The purchase and building of the home in 2006 is a highly significant matter in assessing the marriage at this time. Nevertheless if it were only based upon the financial aspects of the relationship between Mr and Mrs Steward, these do not, on balance, point strongly either way, that is, towards or against them being members of a couple. Each retained a high degree of financial independence – apart from taking out the joint bank account for the building. But there were also features of financial cooperation between them – indeed as represented in the sale of Hammond Way and committing the proceeds to a new home together.
40. On balance I thought the features of the financial aspects of the relationship had firmly tipped towards a finding that they were not living separately and apart since they were making choices to bind their financial affairs together in relation to a major asset.
§ The nature of the household
41. The nature of the household has to take into account the age of the persons involved. As a result, some features of this relationship may be less relevant than would be in a younger couple. They now have simplified home arrangements as there is no-one but themselves there.
42. I accept their evidence that they have separate bedrooms and separate bathrooms. Other areas are shared. In that respect, I would observe that this might be an arrangement similar to that which any number of couples in their age-group might for reasons of health or convenience – have put in place. If Mr and Mrs Steward really wished to ensure separate existences, they might have taken the opportunity when building the house to more clearly provide for that. It does not sound as though this house has any unusual features of separateness.
43. I formed the impression from the evidence of both Mr and Mrs Steward that Mr Steward now does more “inside” household tasks than in the past when he was more responsible for maintaining their yard. He observed that he now puts on washing for both of them, but not her personal clothing. Mrs Steward works in trauma nursing care, on shift work. She gave evidence that she works as many hours as she can because there is nothing for her in the home by way of company from her husband. Nevertheless each gave evidence that if they are there together at meal times, they will eat together. Each will cook and provide a meal for the other, with Mrs Steward (according to her evidence) cooking more frequently than Mr Steward, and meals being frozen for other times. He referred to microwaving already prepared meals.
44. I considered that the nature of the household now is a traditional 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.
§ Social aspects of the relationship
45. Mr and Mrs Steward do not go out of their way to let people know that their marriage is at an end. Mrs Steward says she is a private person and does not regard these matters as anyone’s business, however her closest friend knows. Mr Steward says that he has told some mates. There were written statements of the briefest kind from the two daughters, which were of little assistance as there was no detail provided.
46. One matter that ought to be taken into account with respect to social aspects is how people present themselves others. In that regard I found rather telling that when Mr Steward attended at the Department’s offices in 2006 he referred to Mrs Steward by the expression “Mum”. It is unusual to observe such a familiar term of address, which might be expected in a home setting, used in such circumstances. In the hearing Mr Steward referred to her on one occasion as his “missus”.
47. On other aspects of a social kind, I accept that Mr and Mrs Steward have little enjoyment of each other’s company in the home, apart from occasions when they might eat together. I accept that, in view of Mrs Steward’s heavy work commitments, including shift work on weekend, these occasions are few.
48. I note however that in the reports of doctors references are made to Mr Steward’s wife attending medical appointments with him. Mr and Mrs Steward agreed that there were such occasions, but they said that this was because Mrs Steward was familiar with the hospital layout. However I note that in May 2007 Mr and Mrs Steward were attending together at an appointment following his hip replacement surgery and the doctor noted that he “reassured Clay and his wife that things were all right”[24]. It seems to me that Mr and Mrs Steward are quite happy to present as married at times such as this and make no attempt to suggest otherwise to doctors.
[24] Exhibit R2 at 21.
49. I accept their evidence, however, that they do not share social activities outside the home and they have quite separate circles of friends. There are no joint social activities except those that relate to family birthdays and events such as Christmas. Both gave evidence that Mr Steward would be unlikely to attend these if required to leave home to do so. The more usual pattern is to have the children come to the family home. I accept Mrs Steward’s evidence that she takes holidays on her own and they would never go as a couple to social activities, restaurants or the movies. Mrs Steward said that the last time they had been on holiday together was in 1990 when they went to New Zealand.
50. The evidence was somewhat ambivalent. For instance I was asked to take from the evidence that Mr Steward’s attendance at the daughter’s Christmas celebration at her home (where the other set of in-laws were in attendance) was an exception for Mr Steward. However it could equally be interpreted that the family wished the parents marriage to appear intact. However the taking of separate holidays indicates the parties leading lives separate and apart.
51. On balance I considered that the evidence concerning the social aspects of the relationship pointed more towards them living separately and apart than it did towards a marriage, where it would be expected that they would enjoy each other’s company and companionship. On this aspect, I was satisfied that all the indications were that there was limited social interaction much less than one would expect for married persons. I should also observe that has been no sexual aspect to the relationship for many years.
§ The nature of the commitment to each other
52. The relationship, according to both parties broke down many years ago. According to Mr Steward they live very separate lives. Mrs Steward said that she had sought help from a counsellor with respect to relationship matters and has followed the advice that she had to make a life for herself. Since then she has holidayed on her own and made herself available for extra shift work in her role as a nurse. The result is that their paths rarely cross in the home. On that view of things it might be said that there is a breakdown of commitment to the relationship. However Mr Steward has not taken any steps to obtain a decree of dissolution of the marriage. He says this is because his wife refuses, based on her Catholic religious beliefs. However this does not explain why he would not do so, if the marriage truly had broken down. He, as I understand it, does not adhere to those beliefs.
53. Mr Steward acknowledged that he observes each wedding anniversary with a present to his wife. This, taken on its own might seem a minor matter, but it is surprising thing for him to do in the context of a claim to marriage having broken down.
54. Overall I thought that this aspect of the relationship taken in the context of the sale of the family home and commencing to build a new house together pointed to the continuity of marriage and leads to a conclusion that they have renewed the relationship with a view to its future. As has frequently been observed a marriage can still be a marriage despite being disappointing to the people. That seems to be the state of the relationship now.
THE RELATIONSHIP AS A WHOLE
55. The question before me was whether the applicant and his wife are living separately and apart. In my view they are not from the time that they made the decision to sell their existing home and recommit to a new home together, and thereby making choices to pool their resources to extend their life together when they easily could have gone separate ways.
56. I reach that conclusion having regard to the evidence that I have set out. The relationship is not a happy fulfilling one for these two people but it seems to me that it is one that Mr and Mrs Steward are comfortable with. They are sufficiently comfortable that they would make sure that when the opportunity came to sell the previous home, their future years together would be assured because they planned the new home to be together. It was the home that Mrs Steward wanted to have available to be the “family home” for the daughters and the grandchild to come to. It seemed quite apparent to me that she wanted Mr Steward to be part of that family, as husband, father and grandfather. She gave evidence that she could cope without love in the marriage as long as she could keep her family together.
57. This, it seems to me, was consistent with her concern for his well-being and to keep an eye on Mr Steward’s health issues, which from the available medical reports appear to surface from time to time as serious and concerning. However there was no evidence presented to me to suggest that in more recent years that there have been critical medical incidents of the kind seen with respect to his admission to psychiatric care in 2000. Nevertheless I accept that Mrs Steward worries about where Mr Steward would be without her. Her concerns about his falls have led to the single story house in which they now live. However I was satisfied that there is between them more than a role of carer and caree, or merely friendship and I concluded that they were not living separately and apart at Dartmoor Street. Despite there being much that is sad and perhaps unfulfilling in the relationship, Mr Steward acknowledged in his evidence that they do have an obligation to look after each other. Mrs Steward states that she does not believe that Mr Steward would look after her but clearly she contemplates that her role is to look after him. Mr Steward said in his evidence that the house basically was built because his wife decided that it would be the place “where we will retire”.
DATE OF EFFECT
58. As to the date of effect of the decision in this case, I note that the applicant and his wife received the proceeds of the sale of their house in May 2006 and committed to a contract to build the new house about that time. However it would seem to me that plans to sell would have been on foot rather earlier. Accordingly, I would provisionally set the date of effect as 1 January 2006, but will allow 14 days for the parties to make submissions on the date of effect, it not having been a matter addressed by them at the hearing, in the terms now proposed.
DECISION
59. For the reasons given orally after the hearing, the Tribunal varies the decision under review to provide that the applicant was a “member of a couple”, and therefore entitled to payment of service pension at the married rate, on and from 1 January 2006. This is a provisional date subject to submissions of the parties, to be filed in the Tribunal within 14 days. If no submissions are filed, the date of 1 January 2006 will take effect.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed: .............................[sgd]...................................................
Joan Torbey, AssociateDates of Hearing 21 July 2008, 25 July 2008
Date of Decision 25 July 2008
Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
Advocate for the Respondent Mr R Douglass, Department of Veterans’ Affairs
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