Trainor and Repatriation Commission [1999] AATA 22 (15 January 1999)

Last Updated: 18 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 22

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/785

VETERANS APPEALS DIVISION )

Re LORNA MABEL TRAINOR

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 15 January 1999

Place Melbourne

Decision The decision of the Veterans Review Board made on 12 April 1998 is affirmed.

.......Sgd. Mr J. Handley.........

Senior Member

CATCHWORDS

Veterans Affairs - widows pension - applicant and veteran divorced in 1969 - veteran died in 1982 - whether applicant a "dependent" - whether entitled to a widows pension.

REASONS FOR DECISION

15 January 1999 Mr J. Handley, Senior Member

1. The above application was heard by the late Mr Gillham a former Member of this Tribunal on 26 November 1998. The hearing was convened at the Southern Communities Church of Christ in Cheltenham close to the applicant's residence. It was convened at those premises by reason of the applicant's infirmity. Subsequent to the hearing and before the delivery of his decision Mr Gillham was tragically killed in a motor vehicle accident. Subsequently the parties have consented to the application being decided on the papers filed.

2. This decision has been made having regard to documents filed by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act, documents filed by the respondent prior to the hearing namely a Statement of Facts and Contentions, and the transcription of an audio tape of the evidence at the hearing taken by Mr Gillham.

Introduction

3. This application is to review a decision of the Veterans Review Board made on 2 April 1998 which affirmed a decision previously made by the respondent on 17 November 1997 to refuse Mrs Trainor a widows pension.

4. Upon the hearing Mrs Trainor appeared unrepresented but was accompanied by her son Neil. Another son Kelvin who resides in Western Australia was in communication throughout the hearing by telephone. The respondent was represented by Mr Rudge.

The Facts

5. Mrs Trainor was married to Francis Raymond Trainor from May 1943 until their divorce on 18 July 1969. Thereafter, she and Mr Trainor lived separately and apart from each other. Mr Trainor died on 19 June 1982. In a letter to the VRB Mrs Trainor said (T-5) that she and her late husband had kept company in 1941 after he joined the army and became engaged in 1942. For most of their engagement Mr Trainor was stationed in North Queensland and after marriage until November 1945 he served in New Guinea and Borneo. Prior to her divorce Mrs Trainor received a wife's pension but which was later cancelled with effect from the date of divorce. She said a term of the divorce settlement was a payment by Mr Trainor to her of $10 per week in maintenance together with $5 per week for each of her two children. Later when Mr Trainor became hospitalised in 1950 and qualified for a disability pension she received an allowance consequent upon him receiving the pension. That pension was also cancelled upon divorce.

6. At the hearing Mrs Trainor said that she realised there were legal difficulties in her qualifying for widows pension and said-

"Separation would have been the way to go as far as veterans affairs are concerned but not for my piece of mind ....".

The Legislation

Subsection 13(1) of the Act provides that:

"Where:

(a) the death of a veteran was war caused ...

the Commonwealth is, subject to this Act, liable to pay:

(b) in this case of the death of the veteran - pensions by way of compensation to the dependants of the veteran ...

in accordance with this Act."

Subsection 11 of the Act defines "dependant" as follows:

"(1) In this Act, unless the contrary intention appears:

dependant, in relation to a veteran (including a veteran who has died), means:

(a) the partner; or

(b) a non-illness separated spouse; or

(c) a widow or widower (other than a widow or a widower who marries or re-marries); or

(d) a child;

of the veteran."

Section 5E(1) provides that:

(1) In this Act, unless the contrary intention appears:

partner, in relation to a person who is a member of a couple, means the other member of the couple;

Widow means:

(a) a woman who was the partner of a man immediately before he died; or

(b) a woman who was legally married to a man, but living separately and apart from him on a permanent basis, immediately before he died;

(c) non-illness separated spouse means a person:

(a) who is legally married to a veteran but is living separately and apart from the veteran on a permanent basis; and

(b) whose separation has not resulted in a direction under subsection 5R(5); and

(c) who is not receiving age or invalidity service pension." ................

Subsection 5E(5) provides that:

"For the purposes of this Act:

(a) a person is partnered if the person is a member of a couple".

Subsection 5E(2) provides that:

"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; or

(b) 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 Respondent's Contentions

7. Mr Rudge argued that the applicant can not succeed in her claim because she was not a dependant of Mr Trainor at the time of his death. He submitted that although the applicant was in receipt of an income as a consequence of her divorce settlement prior to the date of the deceased's death she was not a dependant within the meaning of the legislation. He submitted that Mrs Trainor was not a "partner" because she was not "a member of a couple". He also submitted that Mrs Trainor was not married to the deceased nor living with him before his death and she was not "a non illness separated spouse" because she was not legally married.

Conclusion & Reasons For Decision

8. The submissions of the respondent are to be preferred.

9. It is obvious having read the documents filed that Mrs Trainor stood by her husband who was a remarkably changed person apparently by reason of his war-time experiences for 22 years after his return from overseas in November 1945 until their separation in 1967. Despite all that she endured she can not qualify as a dependent within the meaning of the Veteran's Entitlements Act.

10. In the circumstances the decision under review must be affirmed.

I certify that this and the 4 preceding pages are a true copy of the decision and reasons for decision herein of Mr J. Handley, Senior Member

Signed: .Carolyn Irons......................................................

Secretary

Date/s of Hearing 26 November 1998

Date of Decision 15 January 1999

Counsel for the Applicant unrepresented

Counsel for the Respondent Mr K. Rudge