Truan and Commonwealth Superannuation Corporation
[2019] AATA 555
•26 March 2019
Truan and Commonwealth Superannuation Corporation [2019] AATA 555 (26 March 2019)
Division:GENERAL DIVISION
File Number: 2018/1248
Re:Lillian Truan
APPLICANT
AndCOMMONWEALTH SUPERANNUATION CORPORATION
RESPONDENT
DECISION
Tribunal:Ms Anna Burke AO, Member
Date:26 March 2019
Place:Melbourne
The Tribunal sets aside the decision under review and remits the matter to the delegate, finding Mrs Truan is an eligible spouse surviving a deceased person for the purposes of section 6B(2) of the DFRDB Act.
...[sgd].............................................
Ms Anna Burke AO, Member
Catchwords
SUPERANNUATION – beneficiary – commonwealth superannuation scheme – whether Widow entitled to spouse reversionary pension – marital or couple relationship – whether separation was due to special circumstances – whether marital relationship would exist but for deceased mental health issue of post-traumatic stress disorder (PTSD) – decision set aside and remitted
Legislation
Defence Force Retirement and Death Benefit Act 1973
Veterans’ Entitlement Act 1986
Cases
Re Rosemarie Beadle and Director-General of Social Security [1984] AATA 176 (28 May 1984)
Salton and Commonwealth Superannuation Corporation [2012] AATA 305 (21 May 2012)
Salton v Commonwealth Superannuation Corporation [2013] FCA 12 (18 January 2013)
Gray and Defence Force Retirement and Death Benefits Authority [2004] AATA 450 (4 May 2004)Franks and Defence Force Retirement and Death Benefits Authority [2010] AATA 748 (10 September 2010)
REASONS FOR DECISION
Member Anna Burke
Mrs Lilian Truan is the widow of Mr John Truan. Mrs Truan is seeking a spousal reversionary pension (spouse benefit) under the Defence Force Retirement and Death Benefits Act1973 (Cth) (DFRDB Act) following the death of her husband on 12 October 2015.
On 5 September 2017, a delegate of the Commonwealth Superannuation Corporation determined that Mrs Truan was not entitled to the spouse benefit as they found that a marital or couple relationship did not exist between Mr and Mrs Truan at the time of Mr Truan’s death. That decision was affirmed on review on 21 February 2018. The report states:
DFCAP considered the information above and acknowledge that Mr and Mrs Truan never officially divorced, and that Mrs Truan was forced to leave the couple’s home because of Mr Truan’s illness and domestic violence. However, Mr Truan and Mrs Truan had a formal property split in 2006, and 18 years had passed between their separation and Mr Truan’s death. Furthermore, DFCAP noted that there is no evidence that a marital couple relationship continued between Mr Truan and Mrs Truan after their separation, noting no evidence of joint finances, property or independent evidence of ongoing contact during the separation was provided. Therefore DFCAP was satisfied there was an absence due to illness, however, there was no evidence supporting intention to resume cohabitation once the temporary absence or absence due to special circumstances ceased.
Mrs Truan sought further review by the Administrative Appeals Tribunal on 14 March 2018, of the 21 February decision that denied her benefits arising from the death of her spouse John Frederick Truan.
Mrs Truan was represented by Mr Mark Carey of counsel, instructed by Peter Falconer of Peter Falconer & Associates. The Commonwealth Superannuation Corporation was represented by Ms Roslyn Kaye of counsel, instructed by Ms Ingrid Weinberg of Allens. The Tribunal was provided with documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). Counsel for Mrs Truan tendered further documentation. Mrs Truan and her daughter, Ms Jasmine Truan-Jones, gave evidence in person.
BACKGROUND
On 19 April 1973 Mr and Mrs Truan were married at St Andrews Catholic Church Werribee, and remained married for 42 years until Mr Truan’s death from pancreatic cancer in 2015. The marriage produced two daughters, Juanita born in April 1974 and Jasmine born in May 1979.
Mr Truan enlisted in the regular army in or about 1964, engaging in war service in an infantry role during the Vietnam War between November 1968 and March 1970. Later, he joined the RAAF where he performed electronic/radio communications work, and was discharged from the RAAF in about 1985.
Between 1973 and 1985 Mr and Mrs Truan lived in various locations, including Windsor, Penrith and Darwin, associated with Mr Truan’s RAAF postings. On discharge from the RAAF due to spinal issues in 1985 they moved to Cairns for about 8 years, relocating back to Melbourne in 1993.
From 1982 Mr Truan displayed symptoms of post-traumatic stress disorder (PTSD) related to his Vietnam War service, and was formally diagnosed with PTSD in 1988.
In 1986 Mrs Truan opened and maintained her own bank account paying her and the children’s living expenses.
On about 17 June 1998 Mrs Truan moved out of the family home with her daughters. From this time until her husband’s death in 2015, Mrs Truan did not live with her husband on a permeant basis. Mrs Truan first resided in her deceased father’s home and, upon its sale in 2004, purchased her own home in Werribee.
In 2006, Mr and Mrs Truan had a property settlement via family court proceedings. Mr Truan bought out Mrs Truan’s half of the family home in Bannockburn and transferred the title of the property solely into his name in 2007. There were no other assets involved in the property settlement.
On 1 July 2009 Mrs Truan was advised her partner services pension would continue as the Department of Veteran Affairs (DVA) had found “Special Domestic Circumstances” existed under subclause 38(2AC) of the Veterans’ Entitlement Act. Mrs Truan’s statement for Special Domestic Circumstances indicated she had separated from her husband in 1998, due to his physical and mental abuse of her, brought on by his PTSD.
In 2012, Mr Truan moved to Brisbane to live with his mother following the death of her partner. In 2015 Mr Truan’s health began to decline. He relocated to Melbourne, living with his daughter Jasmine and her husband in Wyndham. At this time he was diagnosed with terminal cancer. Subsequently, Mr Truan went into Palliative care and died in hospital.
Following Mr Truan’s death, Mrs Truan was issued with a DVA Health Card which identifies her as a war widow.
ISSUE FOR THE TRIBUNAL
The issue is whether Mrs Truan was in a marital relationship with Mr Truan at the time of his death, as defined by section 6A of the DFRDB Act, and was accordingly a ”spouse” for the purpose of receipt of a spouse benefit under section 39.
LEGISLATIVE AND POLICY BACKGROUND
Section 39 of the DFRDB Act provides for a spouse's pension on death of recipient member;
(1) Where a member of the scheme who is a recipient member dies and is survived by a spouse, then, subject to sections 47 and 75, the spouse is entitled to a pension at a rate equal to five-eighths of the rate at which retirement pay or invalidity pay was payable to the deceased member immediately before the member's death or, if the member had commuted a portion of the member's retirement pay under section 24 or a portion of the member's invalidity pay under section 32A, at a rate equal to five-eighths of the rate at which retirement pay or invalidity pay, as the case may be, would have been payable to the member immediately before the member's death if the member had not so commuted a portion of the member's retirement pay or invalidity pay, as the case may be.
(2) In spite of subsection (1), if, on any of the 7 pay-days immediately following the death of a recipient member, the rate at which pension would, apart from this subsection, be payable to the spouse of the member is less than the rate (in this subsection called the putative rate) at which retirement pay or invalidity pay (as the case may be) would be payable to the deceased member on that day if the member had not died, the spouse is entitled to a pension at a rate equal to the putative rate.
Section 6B of the DFRDB Act defines a spouse who survives a deceased person as;
(1) In this section:
deceased person means a person who was, at the time of his or her death, a contributing member, a recipient member or a person in respect of whom deferred benefits were applicable.
(2) For the purposes of this Act, a person is a spouse who survives a deceased person if the person had a marital or couple relationship with the deceased person at the time of the death of the deceased person.
(3) In spite of subsection (2), a person is taken to be a spouse who survives a deceased person if:
(a)the person had previously had a marital or couple relationship with the deceased person; and
(b)the person did not, at the time of the death, have a marital or couple relationship with the deceased person but was legally married to the deceased person; and
(c)in CSC's opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.
Section 6A of the DFRDB Act defines marital or couple relationship as;
(1) For the purposes of this Act, a person had a marital or couple relationship with another person at a particular time if the person ordinarily lived with that other person as that other person's husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time.
(2) For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person's husband, wife, spouse or partner on a permanent and bona fide domestic basis at a particular time only if:
(a) the person had been living with that other person as that other person's husband, wife, spouse or partner for a continuous period of at least 3 years up to that time; or
(b) the person had been living with that other person as that other person's husband, wife, spouse or partner for a continuous period of less than 3 years up to that time and CSC, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person's husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time;
whether or not the person was legally married to that other person.
(3) For the purposes of this Act, a marital or couple relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).
(4) For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:
(a) the person was wholly or substantially dependent on that other person at the time;
(b) the persons were legally married to each other at the time;
(ba) the persons' relationship was registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 , as a kind of relationship prescribed for the purposes of that section;
(c) the persons had a child who was:
(i)born of the relationship between the persons; or
(ii)adopted by the persons during the period of the relationship; or
(iii)a child of both of the persons for the purposes of the Family Law Act 1975 ;
(d) the persons jointly owned a home which was their usual residence.
(5) For the purposes of this section, a person is taken to be living with another person if CSC is satisfied that the person would have been living with that other person except for a period of:
(a) temporary absence; or
(b) absence because of special circumstances (for example, absence because of the person's illness or infirmity or a posting of the person).
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
Mrs Truan’s statement of June 2018 provided to the Tribunal states:
I was not living with John since 1998 because of the special circumstance of his violent and unpredictable behaviour. I had experienced the violent outbursts and physical assault during the years up to 1998. I was physically assaulted in June 1998 and could not remain in the house.
I was aware that he behaved that way because he suffered from PTSD. If he had been cured of PTSD I would have move back in. However, he could not recover from that illness. I knew he didn’t keep up is treatment for PTSD and preferred to avoid coming to terms with the need to continue his counselling and medication. He told me these things when we talked over the years after I had left the Bannockburn house in 1998. I knew that John still had problems with nightmares, with his gambling, with the angry outbursts from our contact through the years. I couldn’t go back because of the risk to myself and the girls. However, I never sought a divorce and I regarded him as wife and the girls as father and that we were all a family. I would have continued to live with him had it been safe to do so. John and I were Catholics and we took marriage for life seriously. Neither of us ever sought any other partners after we were married in 1973.
I never cared for anyone else and always had John as my husband even if I could not be with him at home after his violence increased in 1998. Nothing about his behaviour changed after we left the home. He still remained an increasingly isolated and uncommunicative man with serious psychological problems that he didn’t deal with by engaging in treatment. Nevertheless, I loved him all his life and would have been with him at home had it been safe to do so.
Mrs Truan advised the Tribunal that:
·She and her husband had lived in various locations because of John’s RAAF postings; that she had also been out of the marital home prior to 1998 to finish her teacher qualifications in Melbourne and that the pair had separated on one other occasion in 1987 for about a year.
·There were difficult times during 1978 and 1979 as John was gambling heavily and she had been off work without pay after the birth of their second daughter. She eventually returned to work and relied on her wages to pay the bills and raise the children. About this time she spoke to a social worker who advised her to establish her own bank account, which she did, relying upon it to settle John’s gambling debts.
·About 1982 was the first time she was physically hit by John. She was so stunned, she took the kids and left the home. When she returned she asked the Padre at the barracks to intervene; explaining she would not tolerate John hitting her. For some time he managed to control himself, but his verbal anger returned and she was never sure whether he might boil over and again hit her.
·From 1989 to 1992 John was very focused on fighting DVA seeking to be awarded a permanent invalid pension; she believed this was in respect of a back injury he had suffered and had undergone surgery. She recalled editing letters he had written to DVA at this time and was alarmed at the level of anger and aggression he displayed. She said John would get upset and frustrated at the process and at some stage went to Canberra for about two weeks to deal with the matter. At this time she cleaned out the garage finding he had failed to lodge tax returns for the last 10 years. When she had resolved the returns with the assistance of an accountant she discovered he owed the ATO about $8,000 to $10,000 which he refused to pay, and which she paid from her own savings.
·Conversations with John were one-sided; he would talk but not listen; could be easily thrown into an unexplained rage by something that was said or done; continued to sleep badly; continued to gamble money on the pokies and his violent and aggressive outbursts continued.
·On 17 June 1998, she’d woken early to get the day’s house work done and see her youngest child off to school. She had taken a break and was sitting down to watch the television. John came in to where she was watching television and started abusing her. She said she tried to calm him down but he just hit her and then dragged her by the hair through the hall to the bedroom and she started to cry. She remained in the bedroom and cried for a long time.
·Following this incident she spoke to the local police requesting their assistance. She did not want to charge her husband but she wanted the police to explain to him that he could not hit her. However, at this time she knew she could no longer be safe with him as he was so angry, aggressive and suffering unpredictable mood swings; so she left the house with the children.
·Although they were no longer living together, she still considered John her husband and part of the family. They communicated regularly, calling or texting each other, inquiring about each other’s well-being and that of the girls. He attended family functions such as Christmas, the girl’s birthdays and other events.
·In 2006 they went to the Family Court in respect of a property settlement for the family home of Bannockburn. No other assets were divided at this time. John was in receipt of a pension from DFRDB at this time, but he told her not to concern herself with a settlement in respect of this as she would be the beneficiary of it upon his death.
·When John returned to Melbourne in 2015 he had been told he was dying from cancer. At this stage, as her daughter’s husband was a former nurse and of large build, it seemed more appropriate for John to stay with them as he was able to look after John’s medical needs and deal with his physical aggression. John continued to be verbally and physically aggressive towards her during this time. She visited him every day, cooking meals and assisting in his care. She never considered herself as John’s carer but as his wife, and these were the duties a wife would perform. She was not in receipt of a carers allowance for this period.
·She had not lived with John since 1998. They did have discussions about reconciliation but decided against it. She was not prepared to live with him until he dealt with his PTSD issues and he was not prepared to seek assistance. She reiterated that the threat of violence kept them apart.
·During John’s absences in Queensland and during his illness, she continued to maintain the family home at Bannockburn. She paid for John’s funeral and was declared the beneficiary to John’s estate, as he had died intestate.
Ms Jasmine Truan-Jones’s statement of April 2018 provided to the Tribunal states:
I have a clear recollection of a telephone conversation I had with my father before he went to Brisbane whilst he was living at Bannockburn. He said to me in relation to mum’s future welfare; “I know mum’s going to be looked after with DVA Benefits when I die.” In that same conversation he also said to me that my mother would be eligible for a pension upon his Death.
I had another conversation with him at my home when he was staying with us after his return from Brisbane. At this time his illness had been diagnosed and he knew it was terminal. It was in the context of a comment by me about how much mum was helping him at this difficult time. He said to me that she would get the Super entitlements both the benefit and the pension on his Death. He commented on how well she had looked after him.
Ms Jasmine Truan-Jones advised the Tribunal that:
·The extended family always included her father in family events, particularly Christmas, as everyone considered them still married. She recalled that her father had attended every Christmas event, even at her auntie’s; during the time he was living in Melbourne.
·Neither her mother nor father had a relationship with any other person. It was only her father’s illness that kept them apart.
·Her father was never physically violent towards her and her sister but he would snap verbally and would often shut down.
·That, when her father returned to Melbourne prior to his death, it was decided that it was best for him to live with her as her husband is an ex-nurse, of large build and that he would be able to manage her father’s physical care and deal with any aggressive outbursts.
·She noted her father was grateful for the help and assistance her mother gave during this period and she did agree that her mother’s help alleviated the burden on her to some degree.
Medical evidence from the Austin Health dated 13 May 2016 confirms Mr Truan’s diagnosis of post-traumatic stress disorder and outlines treatment he sought and received until 1998. The letter states:
Mr Truan was a patient of the Austin and Repatriation Veterans Psychiatry Service until 1998.
On the 27th April 1995, Mr Truan was referred to the Psychiatry Service at the Heidelberg Repatriation Hospital (now part of Austin Health) for consideration of admission to a PTSD (post traumatic stress disorder) program. He was referred by the Vietnam Veterans Counselling Service who noted significant agitation and symptoms of agoraphobia. He had previously seen a psychologist with correspondence dated 7 January 1995 provided.
This correspondence from a psychologist detailed long standing issues with PTSD since his infantry role in the Vietnam War. He had sought help intermittently since 1982, receiving the formal diagnosis of PTSD in 1988. He also experienced depression at times. Recent problems at that time included alcohol abuse, agoraphobia, sleep disturbance, migraines and sciatica. With considerable insight, there had been a focus on recognizing strategies to deal with his symptoms.
On 1 May 1995, Mr Truan was seen by the Psychiatry Service. Considerable difficulties with his PTSD affecting multiple aspects of his life were noted. His relationship with his wife was difficult and his military history was reviewed. He was anxious with a euthymic effect. Symptoms including recurrent, intrusive memories of traumatic experiences, hyperarousal with an increased startle response and chronic anxiety were noted as was a high alcohol intake. He was accepted into the PTSD inpatient program.
On 8 May 1995, Mr Truan was admitted to the PTSD treatment program. He initially underwent a period of alcohol detoxification and was then commenced on medications to assist in controlling his hyperarousal and re-experiencing phenomena. He participated in both inpatient and outpatient phases of the treatment program over a total duration of eight weeks until 30 June 1995. The program included individual and group therapy aiming to desensitise against trauma re-exposure. Some progress was made, though avoidant behaviour was noted which made discussion difficult. At discharge on 30 June 1995, Mr Truan was euthymic and had improved his level of arousal, insomnia and nightmares.
Mr Truan was next seen by the Psychiatry team on 18 December 1995 having contacted them with problems of the preceding 6 weeks. He described a return to heavy alcohol use and using the ‘pokies’, poor sleep and dissociated episodes. A possible trigger for this deterioration was noted to be the death of his father-in-law and therefore temporary less present wife who normally supervised him. He was advised to consider a further period of inpatient detoxification and observation and decided to consider this at home.
When next contacted on the 22nd December 1995, Mr Truan stated that he had stopped drinking again, felt his anxiety had improved and declined admission
On the 12th January 1996, Mr Truan appeared reasonably well, though had a high level of arousal and was restless. He had remained abstinent from alcohol, though described frustration with his General Practitioner regarding his medication and had therefore had variable compliance. He was not currently residing with his wife. Medication adjustments were made and regular review planned.
Mr Truan was next seen on the 9th February 1996. He remained reasonably settled with occasional restlessness. He changed his medications but felt he had found a level which worked for him. He did not attend his next appointments over February and March 1996, stating over the phone that his attendances caused difficulty at home, he was ‘sick of doctors and pills’, had remained abstinent for 2-3 months and would call if he needed further assistance.
Mr Truan’s next contact with the psychiatric outpatient service was on the 18th June 1997. He described 2-3 months of deterioration with poor sleep, anger, increased avoidance behaviour and persecutory ideas. Though having thoughts of self-harm, there was no specific intent formed.
He had not drunk alcohol in the last 4 weeks, describing occasional binges rather than regular alcohol. An inpatient admission was offered to Mr Truan and he agreed to this when the bed was available.
On the 2nd July 1997, Mr Truan was admitted to the Psychiatric Ward. His medications were adjusted and both group and individual sessions of therapy were provided. He improved considerably, particularly in relation to his sleep. He was discharged on the 22nd July 1997 with outpatient follow-up planned.
On the 13th August 1997, Mr Truan returned to the outpatient clinics. He remained well with few nightmares, flashbacks or periods of hypervigilance. He was sleeping for long periods which he felt was caused by his medication. He also described difficulties in social settings.
By next review on the 24th September 1997, Mr Truan remained quite well, though describing persistent difficulties at home. Counselling through the Vietnam Veterans Counselling Service was offered.
Mr Truan was next seen on the 8th October 1997. He felt calmer and less irritable since an increase in his antidepressant dose with improved sleep and better coping with a range of situations. There were, however, ongoing difficulties with his wife and relationship counselling was encouraged.
On the 5th November 1997, though he reported remaining well, note was made of a phone call from his wife on the 21st October 1997 raising concerns about Mr Truan’s mental state. Minimal communication had occurred between Mr Truan and his wife since a domestic incident a month earlier and Mr Truan stated he felt his marriage was ‘over’. He also described some fear of leaving the house and some increase in anxiety levels.
By the 3rd December 1997, Mr Truan appeared more relaxed, though described a lack of ability to do much physically. He also described an ongoing fear of crowds, rarely leaving the house. Overall, he was felt to be stable and was encouraged to increase both his communication with his wife and his activity levels.
A note on the medical record on the 5th December 1997 documents sexually inappropriate behaviour by Mr Truan towards the clerical staff within the psychiatric department. The inappropriateness of this was made clear to Mr Truan.
Mr Truan was next seen by the psychiatrists on the 2nd September 1998. By this time, he was living alone, having separated from his wife some months previously. He remained abstinent from alcohol. Though his PTSD symptoms were controlled, he describes social isolation and persisting anxiety around leaving the house with a fear that he may return to drinking.
Around this time, Mr Truan also agreed to take part in a research project. On the 8th October 1998, he rang to decline participation as ‘he was not going to live’. Though not suicidal, he was planning to cease treatment as part of a political protest which he believed may result in his death. He was not currently seeing a counsellor and declined further psychiatric review. He was deemed to be aware of his decision-making process. He was also again encouraged to return to his counselling service.
Ms Juanita Jane Truan’s statement of 9 May 2018 provided to the Tribunal states:
My father suffered from post-traumatic stress disorder following his war service; he had two and a half tours in Vietnam. He often spoke of the experience and openly shared with me how it affected his life. I know that a couple of his good friends were killed in Vietnam and he took it hard.
This presented in my dad appearing emotionally very volatile and unpredictable in my eyes. He would sometimes lash out. Whilst I was attending the Gordon Institute and living with him on one occasion he hit me with a stick. I called the police but he had calmed down. They wanted me to press charges but because of my relationship with my father I chose not to.
I can remember him saying on occasions when he got angry I’ll cut Mum off from any financial benefits. I knew that was an angry and hollow threat as he always recanted when he calmed down.
Dad became obsessive about small matters and I was present on a number of occasions when he telephoned the Golden Plains Shire and threatened hunger strikes about a dispute he had with the Council about Municipal Rates. On one occasion the Federal Police rang mum at her home. At the time dad had been protesting at Municipal Office about some issue. They rang mum as his wife. The Police in Bannockburn knew of that relationship.
After they had separated mum had counselling for many years to cope with the changed circumstances of the marriage.
In 1989 when I was almost 16 years of age I was put into foster care because he had belted me hard with a strap. The police were called and the Social Workers got involved. I was separated from my parents. We reconnected at the instigation of my mum when I was about 19.
It was a toxic environment at home and dad was entirely unpredictable and capable of physical violence. On one occasion at Bannockburn he threw the television remote control at mum and another time threw my laptop into the yard. I can remember him saying things such as “I’ll get you Lil”. His Post-Traumatic Stress Disorder and his aggression meant he was unable to maintain a normal marriage relationship. Mum and Dad had to reshape their relationship to encompass his fractured emotional state and her sense of peace and safety. To the end of his life based on all of my observations and dealing with my parents I am of the firm view that they always consider themselves husband and wife. In his final days even though he refused to make a Will he often said “don’t worry mum will get everything. She’ll be looked after.
Counsel for Mrs Truan’s Submissions
Counsel for Mrs Truan contended that, at the date of Mr Truan’s death, she was a surviving spouse for the purposes of section 39 of the DFRDB Act and entitled to a continuing spouse pension; as she had a marital relationship with the deceased person who was a recipient member of the fund and would have been living with her husband except for special circumstances.
Counsel strenuously argued the special circumstances Mrs Truan faced was the violent and abusive behaviour of Mr Truan which could be attributed to his PTSD, a result of his war service in Vietnam. Mr Truan’s illness was clearly documented and outlined in the report from the Austin Hospital indicating diagnosis and treatment sought. At the time of Mr Truan’s diagnosis, PTSD was not perfectly understood, treatment was slow and subsequently the disorder was difficult to manage once entrenched.
Counsel for Mrs Truan contended that, at the time of Mr Truan’s death, they and their extended family considered the pair a married couple. The marriage spanned 42 years despite them not remaining under the same roof because of the continuing and deteriorating state of Mr Truan’s mental health, which resulted in violent verbal and physical abuse. At the time of the separation they had been living together for 25 years, having had two children together. At all times Mrs Truan demonstrated a continuing concern for her husband’s health and well-being; maintaining contact, providing financial support, attending family gatherings together and providing care and concern during his terminal illness. Counsel argued this care and concern was the behaviour of a spouse and not a carer.
Counsel argued there was no intention to end the marriage, that Mrs Truan had provided care to her husband when he was dying, not because she was a carer or merely as a support to her daughter, but because she loved her husband.
Counsel for Mrs Truan indicated the DFRDB Act required either temporary absence or absence because of special circumstances. The Act placed no time period on the absence and did not define special circumstances. Counsel reiterated that Mrs Truan could not live with her husband because of special circumstances, being the real threat of violence flowing from her husband’s PTSD, and the significant likelihood of her suffering harm in the future. Her fear of the recurrence of the violence she had experienced prevented her from reconciling with her husband. Counsel asserted that the Tribunal should find that her absence from Mr Truan was due to special circumstances and, therefore, she is entitled to the surviving spouse pension pursuant to section 39 of the DFRDB Act.
Counsel for Commonwealth superannuation Corporation’s Submissions
Counsel for the respondent contended that Mrs Truan’s evidence makes it clear, contrary to the requirements of section 6A(2) of the DFRDB Act, that she was not ordinarily living with her husband on a permanent and bona fide domestic basis at the time of his death. Indeed, the evidence demonstrates that they had not been living as a couple since 1998, some 18 years.
Counsel argued that the meaning of special circumstances within section 6A(5)(b) of the DFRDB Act is highly contextual and will depend on the facts of each individual case. They referred the Tribunal to Re Rosemarie Beadle and Director-General of Social Security [1984] where the Member stated at [12]:
An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
The provision of the DFRDB Act itself provides the example of the person’s illness or the posting of a person.
The respondent’s counsel argued that no medical or other evidence had been presented to the Tribunal which corroborated Mrs Truan’s assertion that her husband’s PTSD resulted in verbal or physical abuse towards her. Counsel argued that as there was no evidence that Mr Truan’s illness resulted in violence towards his wife; the highest it could be raised was as a personality trait. If Mr Truan had a violent personality trait this was something for which there was no ability to correct.
Counsel for the respondent argued there was no evidence which indicated that Mr and Mrs Truan had ever discussed the possibility or expressed the hope of reconciliation. To the contrary, the evidence indicated that whilst they continued to be legally married and never regarded themselves as other than married, particularly within their Catholic beliefs, they lived entirely separate and financially independent lives following the physical separation in 1998 and formal property settlement in 2006.
Counsel took the Tribunal to the matter of Salton and Commonwealth Superannuation Corporation [2012] at [72] – [74]:
There is also no indication from that statement that she would prefer that the two returned to living in a bona fide domestic relationship. As she also said:
Over the course of our married life I realised Hugh was at troubled soul. Ultimately our relationship had to be conducted on a distant basis. We kept in contact, on his terms, and had a mutual interest in our children’s welfare ... While our marital relationship might not be considered normal they were an adaptation to our circumstances.
She also noted that ‘Hugh and I separated ... because of his personality traits and the manner in which they were impacting on our children’. The expression ‘personality traits’ is ambiguous; it is capable of referring to Mr Dixon’s being a ‘loner’ and being inclined to be volatile and to lose his temper; it could also refer to his delusionary behaviour.
Nor was there any corroborating evidence of Ms Salton’s statement that Mr Dixon had at one stage discussed reconciliation. The relationship appeared to be that of a couple who were jointly comfortable with their separate existence and occasional contact. Unlike the position in Re Gray, the evidence did not indicate a couple who were both intending to resume the marital relationship once certain preconditions had been met.
Counsel also referred to Salton v Commonwealth Superannuation Corporation [2013] at [47]:
Ground 2: The Tribunal erred in law in taking into account the intention of the Applicant or deceased in resuming living with each other as intent is an irrelevant consideration for the purposes of section 6A(5)(b) of the Act.
The Tribunal said that findings on the question of whether Mr Dixon would have been in a marital relationship with Ms Salton in the sense that they would have been ordinarily living together on a permanent and bona fide domestic basis at the time of his death required analysis of the couple's behaviour and intentions during their separation, absent Mr Dixon's conditions. In my view intention is not a legally irrelevant consideration for the purposes of s 6A(1). The Tribunal accurately recognised that s 6A(5)(b) did not cover the whole ground of s 6A(1). Far from being legally irrelevant, whether or not Ms Salton and Mr Dixon had an intention to reconcile was directly relevant.
The respondent argued that Mrs Truan’s claim that she would have resumed living with her husband, if he had undertaken medical treatment to deal with his PTSD, was not borne out by the evidence. They argued that the evidence demonstrated Mr Truan had not sought any medical treatment for his PTSD since he discontinued engaging in psychiatric services from the Austin Hospital in 1998. Indeed, the respondent argued Mrs Truan’s evidence indicated Mr Truan had been violent towards her up until his death, demonstrating no intention on her husband’s part to seek treatment for his illness or reconcile with his wife. Additionally, the respondent argued that as the evidence gave rise to Mr Truan’s violence being a personality trait, not a symptom of his illness, this mitigated against Mrs Truan’s assertion she would reconcile with her husband if he sought treatment for his condition; as a personality trait had no ability to be corrected.
Counsel argued that the matter before the Tribunal was distinguishable from the finding in the matter of Gray, where the Member found the couple had an ongoing close relationship. Reconciliation was always in Mrs Gray’s mind and Mr Gray was actively seeking treatment in order to deal with his gambling issues so he could reconcile with his wife and reunite with his family. Counsel took the Tribunal to the Members decision at [24] – [25]:
I find that Mr Gray called Mrs Gray twice on the last day of his life and said that he wanted to come back to the family. He also said that he was not wanting to come back just for the children but also for her. I find on that evidence that he still had a commitment to the marriage, and that he wanted to be with his wife and family, but he was kept apart from them because of the effect on them of his problems of depression and gambling addiction. I find that Mrs Gray agreed to him coming back, with some reservations, and told him that day that she still loved him.
I find from Mrs Gray's evidence that she never ceased to regard herself as the wife of Mr Gray, and was ready to resume life with him if she could feel confident that she and her children would not have to again go through problems caused by his gambling. Mrs Gray's evidence is that she at all times kept close contact with her mother-in-law in Western Australia with fortnightly phone calls on a Sunday, that she and her husband had a number of telephone calls, and that the issue of reconciliation was something that they discussed and that was always in her mind. But she did believe that it would only work when her husband had solved his problems with his gambling addiction. Mrs Gray said that she always loved her husband, and regarded herself as still married to him. She said, "I thought we were making ground slowly to get back together".
Counsel contended instead the Tribunal should turn to the decision in Franks, where the Member was not satisfied that Mrs Franks would have been living with her husband except for his illness; finding instead the couple had sold the marital home, had not reconciled and there was no basis to find the couple would have reunited had Mr Franks not died. Counsel drew the Tribunal’s attention to Deputy President D G Javis’ findings at [14] and [16]:
Having regard to all of the evidence before me, I am not satisfied that the parties would have been living together, except for a period of temporary absence, within the meaning of s 6A(5)(a) of the Act. The facts are that the matrimonial home had been sold; as mentioned above, the parties did not ever reconcile; and nor was there any evidence of a prospective date by which a reconciliation might have taken place, or any basis on which I could find that the period of separation was going to come to an end or would have come to an end, in the period prior to the deceased’s death or, indeed, within a definable period after that, if he had not died. As Mr Roche submitted, the continuing good relations between the parties is not enough to enable me to say that the absence had only been temporary, or that the separation had only been temporary.
I am also not satisfied that this is a case where special circumstances apply (see s 16A(5)(b)). Unfortunately, separation due to a break down in marital relations is not unusual, and there were no unusual features of this case (even allowing for the deceased’s illness in the period after he had been diagnosed as suffering from the condition from which he died) from which I am satisfied that the deceased would have been living with Mrs Franks at the time of his death except for a period of absence because of special circumstances, within the meaning of s 6A(5)(b). I find that his absence was because of the parties’ continued separation, which commenced before the diagnosis of the terminal condition, and not because of special circumstances.
The respondent’s counsel strenuously argued that the evidence did not establish special circumstances in respect of Mrs Truan’s separation from her husband. That Mr and Mrs Truan had not lived together since being separated, had sold the marital home and separated finances, did not have ongoing continuous contact after their separation in 1998, and that they had no desire to reconcile during his illness or before his death. Counsel asserted that Mrs Truan was acting as a carer, and that her role during Mr Truan’s illness was not in the nature of a spouse but as a concerned individual; as she had expressed that there was no one else to care for him. Additionally, counsel submitted that during this period Mr Truan was not living with his wife, but their daughter, and Mrs Truan’s role was as much support to her daughter as it was to her former husband.
Counsel urged the Tribunal to find that special circumstances did not exist; that Mr and Mrs Truan were not living as a bona fide couple at the time of Mr Truan’s death and, therefore, Mrs Truan did not meet the requirements of an eligible spouse surviving a deceased person for the purposes of section 6B(2) of the DFRDB Act; and her application for a spousal revisionary pension should be denied.
FINDINGS
The Tribunal finds there is no dispute that Mr and Mrs Truan were legally married to each other at the time of Mr Truan’s death. Mr Truan was a member of the DFRDB scheme and Mr and Mrs Truan had not been living continuously for a period of at least three years up to the time of Mr Truan’s death. There is no dispute that Mr and Mrs Truan had been separated for an extensive period of 18 years prior to his death and had undergone a financial settlement of their property.
The issue in dispute between the parties is whether the separation of Mrs Truan from her husband at the time of his death was because of special circumstances.
The Tribunal finds that Mr Truan was suffering from PTSD prior to and at the time of his separation from his wife, as established by the letter of the Austin Hospital dated 30 May 2016, which confirmed Mr Truan had received formal diagnosis of PTSD in 1988. The Tribunal draws a distinction between the decision in Franks, where there was no formal diagnosis of an illness at the time of separation, but only a statement from Mrs Franks about her husband’s personality traits. Mr Truan was suffering from a chronic recognised mental illness for which he had sought and received treatment. The statement from Dr Andrew Bell, Mr Truan’s general practitioner, dated 7 March 2005 confirms he continued to suffer from this mental health condition. In the report Dr Bell states:
John has asked me to provide a summary of his various medical complaints as background to his legal issues.
His main problems are those of post traumatic stress disorder as a result of his Vietnam service. This causes recurrent intrusive thoughts, flashbacks, hypervigilance and at least one episode of markedly delusional thinking. This tends to be exacerbated at times of stress or when things military are in the news. He also suffers badly from back pain and has undergone spinal surgery in the past.
The Tribunal finds Mrs Truan to be a forthright witness who described the complex and difficult relationship with her husband in an open and honest manner. She indicated that she continued to consider herself married to the man she loved, the man he was, not the individual suffering from PTSD.
The Tribunal accepts Mrs Truan’s account that she suffered verbal and physical abuse at the hands of her husband; and that there is no corroborating medical evidence indicating that a symptom of Mr Truan’s illness was verbal or physical abuse against his wife. However, the report from the Austin Hospital notes that his PTSD was affecting multiple aspects of his life and that his relationship with his wife was difficult. The report also notes problems including alcohol abuse, agoraphobia, sleep disturbance, migraines, sciatica persecutory ideas, disassociated episodes and using the pokies. The report does indicate that some progress was made but avoidance behaviour was noted, which made discussions difficult.
The Tribunal accepts the statement from Mrs Truan’s oldest daughter, who confirmed her father’s erratic behaviour; which resulted in violent outbursts towards both herself and her mother on occasion. The respondent did not seek to test the oldest daughter’s statement, as the parties agreed she was not required to provide oral evidence to the Tribunal.
The Tribunal finds that Mrs Truan’s absence from her husband was due to special circumstances as a result of Mr Truan’s illness. The Tribunal concurs with the finding of the delegate, who was satisfied there was an absence due to illness in their determination not to award Mrs Truan a spousal pension under section 39 of the DFRDB Act.
The Tribunal accepts that Mrs Truan had always hoped her husband would receive the treatment he needed to deal with his illness, allowing them to reconcile and resume living together as a marital couple. There is no evidence indicating Mr Truan’s desire to reconcile and the Tribunal accepts the delegate’s finding that, there was no evidence supporting inattention to resume cohabitation once the temporary absence or absence due to special circumstances ceased.
Section 6A(5) of the DFRDB Act clearly requires a temporary absence or absence because of special circumstances. The Act does not require both subclauses to be met for the individual to be an eligible spouse surviving a deceased person for the purposes of section 6B(2). Additionally, the Act makes no reference to the cessation of special circumstances, places no time limit on the period of absence because of special circumstances and does not indicate that the special circumstances, such as an illness, must be resolved for the surviving spouse to be entitled to a benefit under clause 39 of the DFRDB Act.
The Tribunal finds Mrs Truan is an eligible spouse surviving a deceased person for the purposes of section 6B(2) of the DFRDB Act, as she was separated from her husband due to special circumstances. The special circumstances being her husband’s illness of PTSD which persisted for 18 years preventing her from reconciling with her husband. Regardless, she continued to be legally married and maintain an ongoing relationship with her husband until his death.
DECISION
The Tribunal sets aside the decision under review and remits the matter to the delegate, finding that Mrs Truan is an eligible spouse surviving a deceased person for the purposes of section 6B(2) of the DFRDB Act.
53. I certify that the preceding 52(fifty-two) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member
....[sgd]..................................................
Associate
Dated: 26 March 2019
Date of hearing: 17 December 2018
Counsel for the Applicant: Mr Mark Carey Solicitors for the Applicant: Mr Peter Falconer
Peter Falconer & AssociatesCounsel for the Respondent: Ms Ingrid Weinberg Solicitors for the Respondent: Ms Roslyn Kaye
Allens
0
4
0