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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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Dependant of deceased veteran - whether partner of veteran - whether in marriage-like relationship
Garner v Repatriation Commission
Tamberlin J
3 November 1998
[Full Text]
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Mrs Garner lodged an appeal to the Federal Court against a decision of the AAT that she was not a "member of a couple" and was therefore not a "dependant" of the late Mr Garner, within the meaning of sections 11 and 11A of the VE Act. The AAT was not satisfied that there was a marriage-like relationship between the applicant and her late husband at the time of his death. It considered that even if it had not been for the illness of her husband, the applicant would not have been living with him either before his admission to a nursing home, nor at the time of his death. As a consequence, she was not eligible for a war widow's pension.
Mrs Garner had lived with the late veteran in a de facto relationship for about nine years up to 1973 and they had two children born in 1966 and 1968. In 1973, she left the home where she lived with the veteran as he was violent when under the influence of alcohol. He was diagnosed with "Korsakoff's psychosis in consequence of alcoholism". He subsequently visited her and the children several times but they did not resume living together on a permanent basis. In 1976, he was admitted to a psychiatric centre for about five years and then lived in nursing homes until his death in 1987.
Appeal grounds
It was submitted that the AAT had erred in law in finding that Mrs Garner and the veteran were not in a "marriage-like relationship" at the time of his death, for the purposes of s 5E(2)(b)(iii) of the VE Act. It was submitted that when deciding whether the parties were in a marriage-like relationship at the relevant time, the Tribunal failed to take into account that the parties were separated as a result of the veteran's illness, as required by s 5E(3)(b) of the Act.
Tamberlin J observed that the "deeming" provision in s 5E(3) is expressly and specifically limited to an assumption for the purposes of sub-paragraph 2(b)(i); namely, to decide whether the applicant was living with a partner. The provision does not in terms operate in relation to a consideration of other sub-paragraphs in sub-section 5E(2)(b). In other words, the deeming provision only operates for the purpose of considering whether the partners were living together at the relevant time. It is not concerned with the question whether the applicant and the veteran were, in the Commission's opinion, in a "marriage-like relationship" within sub-paragraph 5E(2)(b)(iii).
Tamberlin J said:
"The indicia of 'living together in a marriage-like relationship' are set out in s 11A(a) to (e) inclusive. It is to be noted that s 11(A) requires regard to be had to all of the circumstances of the relationship and goes on to spell out a number of specific matters which must be taken into account. When considering 'all the circumstances of the relationship' it was, of course, open to the AAT to take account of the fact that the veteran and the applicant had been separated as a consequence of the veteran's illness and the consequential violence and dysfunctional behaviour arising from it. It is clear that the illness and the separation are important matters to be taken into account. On a careful reading of the AAT decision, with respect to whether there was a marriage-like relationship, I am not satisfied that the AAT ignored the illness and its impact on the relationship. In the light of the specified considerations set out in s 11A, it seems to me that a strong case is shown on the evidence for the view that there was no marriage-like relationship at the relevant times. However, it is not for this Court to determine the substantive question on its merits but simply to decide if the AAT's determination was open on the material before it.
"More specifically, a consideration of the financial aspects of the relationship at the relevant times would not indicate a marriage-like relationship. There was no joint household responsibility for living arrangements or housework. The social and sexual aspects of the relationship, at the relevant times, appear to have been non-existent. Although there had been a substantial commitment between the parties for the period prior to 1973, it was open to the AAT to find on the material, that the various matters set out in sub-paragraphs s 11A had not been made out.
"If the applicant is to succeed, it must be shown that there was an error of law made by the AAT in relation to the finding that there was no 'marriage-like relationship'. No such error has been established. It follows that the appeal must be dismissed."
Two additional matters were raised on Mrs Garner's behalf. The first was that the AAT erred in finding that, even if it had not been for the illness, the applicant would not have been living with the veteran before his admission to the nursing home or at the time of his death. The Court said that this was essentially a question of fact for the AAT to determine. The second matter concerned a statement by the AAT that:
"In any event, the Tribunal cannot be satisfied on the balance of probabilities of the cause of Mr Garner's behaviour which led to Mrs Garner to leave him in 1973."
The Court said that the AAT was in error in this regard as it was clear that the cause of the 1973 separation was the veteran's behaviour towards Mrs Garner. However, this was a collateral finding only and was not essential to the decision reached. The AAT had not erred in finding that there was no 'marriage-like relationship' and the appeal was therefore dismissed.
Formal decision
The Court dismissed Mrs Garner's appeal.
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