Jenkins v Repatriation Commission [1999] FCA 269 (22 March 1999)

Last Updated: 22 March 1999

FEDERAL COURT OF AUSTRALIA

Jenkins v Repatriation Commission [1999] FCA 269

JOAN ELEANOR JENKINS v THE REPATRIATION COMMISSION

N 28 OF 1999

HELY J

22 MARCH 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 28 OF 1999

BETWEEN:	JOAN ELEANOR JENKINS Applicant
AND:	THE REPATRIATION COMMISSION Respondent
JUDGE:	HELY J
DATE OF ORDER:	22 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. No order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 28 OF 1999

BETWEEN:	JOAN ELEANOR JENKINS Applicant
AND:	THE REPATRIATION COMMISSION Respondent

JUDGE:	HELY J
DATE:	22 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 . The issue is whether the Administrative Appeals Tribunal, Veterans Appeals Division ("AAT"), made an error of law in concluding that the applicant is not a dependant of the late Alan Milton Jenkins ("the veteran") within the meaning of the relevant provisions of the Veterans' Entitlements Act 1986 ("the Act"). In coming to that conclusion, AAT affirmed the decision of the Repatriation Commission, which had itself been affirmed by the Veterans' Review Board.

The Legislative Scheme

2 The Commonwealth is liable to pay pensions to dependants of veterans whose deaths are war-caused: Act, s 13(1). Whether the veteran's death was war-caused has not been the subject of determination. The only issue before AAT was that of dependency. This issue was raised as a preliminary question.

3 The definition of dependant in s 11 of the Act relevantly includes the partner (s 11(1)(a)) or widow (s 11(1)(c)) of the veteran. The applicant was not legally married to the veteran at the time of the veteran's death. Thus 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."

Partner is defined in s 5E(1) as the other member of a couple.

4 Member of a couple is defined in s 5E(2). The relevant part of the subsection for present purposes 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 s 11A), in a marriage-like relationship;

(iv) the person and the partner are not within a prohibited relationship for the purposes of s 23B of the Marriage Act 1961.

5 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.

Factual context

6 The applicant was married to the veteran on 2 April 1942. After the war, the veteran practised as a barrister until 1968, when he ceased practice because of the effects of Huntington's disease. Between about 1963 and 1968 the veteran underwent a change in personality, which produced periods of rage, and of depression, with episodes of violence towards the applicant, all of which was foreign to his previous placid nature.

7 The matrimonial home was at 2 Delmar Parade, Gladesville. After one particular episode of violence, when the veteran tried to kill the applicant, the applicant left the matrimonial home and went to live with her mother for about six or eight weeks until she purchased a townhouse in Randwick. Thereafter the applicant and the veteran lived separately and apart.

8 There was some confusion in the evidence as to when this separation occurred. 1968, 1972-3, 1975 and 1976 are mentioned at various points in the material before AAT. AAT did not make a specific finding as to the date of separation. The applicant explained her lack of accuracy in this respect upon the basis that she was under considerable stress, and was in her 80's. It is a matter as to which she was obviously confused, but beyond pointing to the fact that separation may have occurred prior to 1976, counsel for the respondent did not suggest that the matter was of any particular significance.

9 On 8 April 1979 the applicant obtained a divorce from the veteran. She did not want to divorce him, but was concerned at the prospect of his dissipating assets, and was advised that the only way of securing a property settlement was as part of the process of dissolution of marriage.

10 There was no contact between the applicant and the veteran from the time of separation until shortly before his death. The applicant said (and AAT found that the facts for which she contended were not disputed), that the reason for the lack of personal contact was the veteran's violence towards her. There was no point in trying to maintain contact by other means because he would not answer the phone, he would not answer letters.

11 But the applicant and her family continued to care for the veteran. The applicant contributed about a third of any expenses which the veteran incurred. She organised for food to be delivered to him and organised anything else that he required. When the applicant was away from his Gladesville home she, with the assistance of professional cleaners, would clean up the house which was in an awful mess, and generally do or arrange what needed to be done so that it was in a habitable condition.

12 In March 1982 the veteran was taken to Gladesville Mental Hospital where he remained for a period until transferred to Ryde Nursing Home where he remained until his death on 29 June 1982. The applicant saw him on a couple of occasions in the nursing home.

The decision of AAT

13 AAT found that neither of the conditions prescribed by s 5E(2)(b)(i) or (iii) had been met. Clearly the s 5E(2)(b)(i) condition could only be satisfied if the applicant could invoke the deeming provisions of s 5E(3), as the applicant was not, after the separation, in fact living with the veteran.

14 AAT's conclusion in relation to the operation of s 5E(3) is contained in a single paragraph:

"21. While we acknowledge that after she left the family home she was absent from that home due to the illness of Mr Jenkins, the evidence of Mrs Jenkins was such that the Tribunal could not be of the opinion that she and Mr Jenkins would, but for the latter's absence, have been living together. It is our view, therefore, that the first condition set out in section 5E(2)(b)(i) is not met."

15 Nor was AAT (standing in the shoes of the Commission) of the opinion that the veteran and the applicant were in a marriage-like relationship at the time of the veteran's death. As to this, AAT made the following findings:

"27. In her written statement Mrs Jenkins made reference to the reason she found it necessary to obtain a divorce. We should make it clear that we have no difficulty with the reason she gave, which was to acquire sufficient money to enable her to pay off the townhouse which she had purchased for herself. It should likewise be recorded that the respondent also does not dispute the reason given by Mrs Jenkins.

28. While that is so, the position, however, is that as was correctly submitted by Ms Doggett, section 11A makes it clear that the relationship must be of a reciprocal nature and not unilateral or one-sided. It is an unfortunate fact that while Mrs Jenkins demonstrated great concern and affection towards Mr Jenkins, that concern and affection was not reciprocated.

29. The evidence reveals that, except in a very minor and occasional way, Mr Jenkins did not contribute in respect of daily living expenses. Nor is there any indication that he helped her with her legal obligations. Neither did Mr Jenkins hold himself out to others to have maintained a marriage with Mrs Jenkins.

30. There is likewise no indication that Mr Jenkins provided any companionship or emotional support to Mrs Jenkins.

31. The evidence given by Mrs Jenkins makes it clear that she contributed financially to Mr Jenkins circumstances. She helped financially in respect of the maintenance and repairs of the family home. Her evidence was that her children also gave financial support.

32. As we have demonstrated, Mrs Jenkins gave evidence that the members of her family and close friends were aware of her situation, including the fact that she had divorced her husband. There is no indication that her friends considered she and Mr Jenkins to be still a married couple.

33. Mrs Jenkins stated in evidence that there was no sexual relationship between herself and Mr Jenkins. In fact Mrs Jenkins did not see Mr Jenkins from the time she was divorced in 1979 until some six to eight weeks prior to his death, when he was in a nursing home."

Consideration - Living Together

16 The applicant submitted that the evidence before AAT was that the applicant had moved from, and remained away from, the family home because the veteran had become seriously affected by Huntington's disease. That disease, and its effect on the parties, was the explanation for the separation, for the divorce, and for the parties thereafter remaining apart. The submission treats the relevant "absence" as being that of the applicant, and contends that it results from the illness or infirmity of the veteran.

17 On the other hand the respondent submits that the purpose of s 5E(3)(b) is to clarify that a couple who would otherwise be living together continue "living with" one another for the purposes of the Act even though they are separated by - for example - work commitments (s 5E(3)(a)) or the need of one of them to enter a hospital or nursing home because of illness (s 5E(3)(b)). Thus the fact that a veteran dies in a nursing home or hospital does not prevent his widow, who would otherwise be living together with him, from meeting the requirements of s 5E(2)(b)(i).

In the present case, the veteran died in a nursing home at a time when he and the applicant were not persons who would otherwise be living together. The Tribunal therefore correctly found that the condition set out in s 5E(2)(b)(i) was not met.

18 Section 5E(3)(b) is clearly not confined to absences of a temporary character. The notion is that a person who lived with another person is absent or away from that other as a result of illness or infirmity. The illness or infirmity could be that of either of them, and perhaps of others. It is curious that, in the case of a couple, the legislation is framed in terms of the absence of one of the participants, but nothing turns on this.

19 In its application to the present case, s 5E(3) required AAT 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.

(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).

(a) is uncontroversial. (b) and (c) would require AAT to determine why it was that the applicant withdrew from the relationship and whether, if the absence was one which began as a result of illness, it continued for that reason alone: cf Pearce v Hornsey (1991) 29 FCR 239 at 244.

20 The respondent's submissions treat the relevant absence as being confined to the period in which the veteran was in the nursing home. Were it not for that absence, the respondent submits that the veteran would have been living alone at Gladesville, because the parties were divorced in 1979, and had lived separately and apart ever since. The reality of the divorce, and its impact upon the relationship cannot be ignored. Section 5E(3) does 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.

21 In my opinion, the respondent's submission has too narrow a focus. Section 5E(3) involves the wider and more difficult enquiry described in paragraph 19 above, because the section mandates consideration of what would have been the case if illness or infirmity had not resulted in persons who were once living together, living apart.

22 The applicant contends that it was not open on the evidence before AAT, for the AAT to form any view other than: the sole explanation for the absence of the applicant from the joint relationship which previously existed was because the veteran had become seriously affected by Huntington's disease; and but for that absence, the applicant and the veteran would have been living together in the period prior to the veteran's death.

23 AAT appears to accept the applicant's evidence generally and that the applicant was absent from the family home due to the illness of the veteran. But it does not follow from that finding that AAT was bound to reach the second of the conclusions for which the applicant contends.

24 Whether the applicant would, but for absence resulting from illness, have been living with the veteran at the time of his death involves an assessment of the probabilities taking account of the vicissitudes of life. The applicant's evidence as to her hopes or expectations cannot necessarily be determinative of the question.

25 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 records the proper approach to a consideration of the sufficiency of the reasons of an administrative decision-maker. Whilst giving full weight to those matters, I have to say, with respect, that I have considerable difficulty in understanding what AAT intended to convey by paragraph 21 of its reasons.

26 AAT's finding appears to accept (as the applicant submits) that the applicant's absence was due to the veteran's illness. But then AAT purports to find in the evidence of the applicant, a foundation for a conclusion that it could not be satisfied that the parties would otherwise have been living together.

27 AAT does not state what evidence it relies on; and counsel for the respondent was unable to point me to evidence which satisfied that description. Nor does AAT give any reason for reaching the conclusion which it did. Whilst it may have been open to AAT to reach the conclusion which it did, the opposite conclusion may also have been open on the materials before it.

28 In my view, it was incumbent on the AAT to say why it could not be satisfied that but for the illness of the veteran the parties would otherwise have been living together, and, if that conclusion derived from the applicant's evidence, to indicate its general character. Without this information the parties "will have but an incomplete idea of the Tribunal's process of reasoning and a lessened respect for the Tribunal's decision-making process": Copperart Pty Ltd v Federal Commissioner of Taxation (1993) ATC 4, 779 at 4, 781 per Hill J.

Consideration "marriage-like" relationship

29 The applicant accepts, correctly, that it would have been open to AAT to have reached a conclusion, on all of the material before it, that there was not, in its opinion, a marriage-like relationship subsisting between the applicant and the veteran immediately prior to his death.

30 However, it is contended that AAT has proceeded on the basis that reciprocity is a mandatory requirement of s 11A, whereas s 11A has no mandatory requirement at all. The complaint is that AAT has erected a legal hurdle which the applicant has to overcome for which there is no warrant in the section.

31 There would be no error in treating reciprocity as an element, and an important element of a marriage-like relationship. A mutual commitment to a shared life as husband and wife to the exclusion of others, has, in a different statutory context, been treated as determinative of a genuine and continuing marital relationship: Minister for Immigration, Local Government & Ethnic Affairs v Dhillon (unreported, Northrop, Wilcox and French JJ, 8 May 1990).

32 I do not think that, on a fair reading of the Tribunal's decision as a whole, it has committed an error of the type for which the applicant contends. Rather, AAT was 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.

33 In my view, AAT 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, AAT was not of the opinion that the applicant and the veteran were in a marriage-like relationship immediately prior to his death. That was a conclusion which was open to it on the evidence.

Conclusion

34 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.

35 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 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.

36 The application is dismissed. As the applicant succeeded on one issue, and failed on the other, but failed in the result, there should be no order as to costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 22 March 1999

Counsel for the Applicant:	M Vincent
Solicitor for the Applicant:	K Harrison
Counsel for the Respondent:	R Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 March 1999
Date of Judgment:	22 March 1999