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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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War widows' pension - whether marriage-like relationship
Jenkins v Repatriation Commission
Hely J
22 March 1999
[Full Text]
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Mrs Jenkins lodged an appeal to the Federal Court against a decision of the Tribunal that she was not a "dependant" of the late veteran at the time of his death. She married the late veteran in 1942 and they were divorced in 1979. The Tribunal found that Mrs Jenkins was not living with the late veteran at the time of his death and was also not in a "marriage-like relationship" with him.
Legislation
The definition of "dependant" in s 11 of the VE Act relevantly includes the "partner" (s 11(1)(a)) or "widow" (s 11(1)(c)) of a veteran. Mrs Jenkins was not legally married to the veteran at the time of his death. The relevant part of the s 5E(1) definition of "widow" is:
"(a) a woman who was the partner of a man immediately before he died."
The term "partner" is defined in s 5E(1) as the other member of a couple.
The expression "member of a couple" is defined in s 5E(2). The relevant part of the subsection in this case is s 5E(2)(b) which provides that a person is a member of a couple if:
"all of the following conditions are met:
(i) the person is living with a person of the opposite sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the person and the partner are, in the Commission's opinion (formed as mentioned in section 11A), in a marriage-like relationship;
(iv) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961."
The expression "living with" is qualified by s 5E(3):
"For the purposes of subparagraph (2)(b)(i), a person is to be treated as living with another person during:
(a) any temporary absence of one of those persons;
(b) an absence of one of those persons resulting from illness or infirmity;
if the Commission is of the opinion that they would, but for the absence, have been living together during that period."
Section 11A specifies the matters to which regard is to be had in the formation of an opinion as to whether persons are living together in a marriage-like relationship.
Living together
Mrs Jenkins submitted that she had separated from the veteran because he was seriously affected by Huntington's disease and was violent towards her. She said that she was advised to obtain a divorce in order to secure a property settlement. There was minimal contact between her and the veteran after the separation although she and her family continued to care for the veteran. She visited him several times in a nursing home shortly before his death in 1982.
Hely J said that the Tribunal correctly found that the condition set out in s 5E(2)(b)(i) was not met as the late veteran died in a nursing home when he and the applicant would not otherwise have been living together. In applying s 5E(3), the Tribunal was required to decide:
(a) whether the applicant and the veteran were once living together;
(b) whether the absence of the applicant from that joint relationship resulted from the illness or infirmity of the veteran; and
(c) whether, in the opinion of AAT the parties would have been living together in the period in which they were apart, were it not for (b).
Hely J said that the reality of the divorce and its impact on the relationship in this case could not be ignored. Section 5E(3) did not allow one to go back into history, and to reconstruct what might have been the fortunes of the applicant and the veteran had the veteran not been inflicted with Huntington's disease.
His Honour observed that the basis of the Tribunal's conclusion that the parties would not otherwise have been living together was unclear. Its failure to give adequate reasons for its decision in this regard was an error of law.
Marriage-like relationship
Mrs Jenkins submitted that the Tribunal had proceeded on the basis that reciprocity was a mandatory requirement of s 11A, which specifies the criteria for a "marriage-like relationship".
Hely J said that there was no error in treating reciprocity as an important element of a marriage-like relationship. The Tribunal was merely pointing out that the general conception of a marriage-like relationship is one involving mutuality of commitment, and that many of the specific matters listed in s 11A require consideration of whether or not the particular relationship has mutual or reciprocal elements which are regarded by the legislature as characteristics of a marriage-like relationship. The Tribunal was doing no more than indicating its conclusion as a matter of fact; no matter how creditable the applicant's treatment of the veteran may have been, it was not of the opinion that the applicant and the veteran were in a marriage-like relationship immediately prior to his death. This conclusion was open to it on the evidence.
Conclusion
Hely J concluded as follows:
"Whilst I have found that the failure of AAT to give adequate reasons for its decision on the issue posed by s 5E(2)(b)(i) is an error of law, the requirements of s 5E(2)(b) are cumulative. The applicant has to satisfy both ss 5E(2)(b)(i) and 5E(2)(b)(iii). The applicant failed to satisfy the AAT of the matter referred to in s 5E(2)(b)(iii), and no error of law was committed by AAT in that respect. There is no interdependency between the two conditions such that failure to give adequate reasons in relation to one can infect the other.
That being so, it would not be appropriate to set aside the decision of the AAT, as its conclusion as to the non-satisfaction of the s 5E(2)(b)(iii) condition is sufficient to sustain the result. In other words [the] AAT correctly held that the applicant and the veteran were not partners at the relevant time. Consequentially the applicant could not have been the widow of the veteran."
Formal decision
The Court dismissed Mrs Jenkins's appeal.