Garner, Marie Angela v Repatriation Commission [1998] FCA 1387

Garner, Marie Angela v Repatriation Commission [1998] FCA 1387

The appeal failed because the applicant did not establish an error of law in the AAT's conclusion that she and the veteran were not in a marriage-like relationship at the relevant times. Section 5E(3) deemed cohabitation only for the purpose of s 5E(2)(b)(i), not for the marriage-like relationship requirement in s 5E(2)(b)(iii). The AAT had not ignored the veteran's illness and its effect, and its conclusion was open having regard to the s 11A indicia. Although the AAT erred in a collateral statement about the cause of the 1973 separation, that error was not essential to the outcome.

Jurisdiction
Australia
Judgment Date
03 November 1998
Procedural Posture
Appeal From a Decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal Concerning Entitlement to a War Widow's Pension Under the Veterans' Entitlements Act 1986 / Federal Court Determination of Application for Extension of Time and Appeal
Outcome
Extension of time granted; appeal dismissed; no order as to costs.
Legal Topics
['entitlement to Pension' 'dependant of Veteran' 'partner' 'member of a Couple' 'marriage Like Relationship' 'absence Resulting From Illness or Infirmity' 'appeal From Administrative Appeals Tribunal']
['administrative Law' "veterans' Affairs"] ['entitlement to Pension' 'dependant of Veteran' 'partner' 'member of a Couple' 'marriage Like Relationship' 'absence Resulting From Illness or Infirmity' 'appeal From Administrative Appeals Tribunal']

Case Brief

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Procedural Posture

Appeal From a Decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal Concerning Entitlement to a War Widow's Pension Under the Veterans' Entitlements Act 1986 / Federal Court Determination of Application for Extension of Time and Appeal

Legal Issues

  1. 1 ["Whether the applicant was a dependant of the veteran within the meaning of ss 11 and 11A of the Veterans' Entitlements Act 1986." "Whether the applicant was the veteran's partner by being a member of a couple under s 5E of the Veterans' Entitlements Act 1986." "Whether the applicant and veteran were in a marriage-like relationship at the time of the veteran's death." 'Whether s 5E(3) deemed the applicant to be living with the veteran because any absence resulted from illness or infirmity.' 'Whether the Administrative Appeals Tribunal made an error of law requiring its decision to be set aside.']

Ratio Decidendi

The appeal failed because the applicant did not establish an error of law in the AAT's conclusion that she and the veteran were not in a marriage-like relationship at the relevant times. Section 5E(3) deemed cohabitation only for the purpose of s 5E(2)(b)(i), not for the marriage-like relationship requirement in s 5E(2)(b)(iii). The AAT had not ignored the veteran's illness and its effect, and its conclusion was open having regard to the s 11A indicia. Although the AAT erred in a collateral statement about the cause of the 1973 separation, that error was not essential to the outcome.

Court Disposition

Extension of time granted; appeal dismissed; no order as to costs.

Orders

  • ['An extension of time be granted to file and serve the Notice of Appeal out of time until 8 May 1998.' 'The appeal be dismissed.' 'No order as to costs.']