Case: Garner v Repatriation Commission (1998) 53 ALD 297
Outcome: cited
The formula of the words 'living together in a marriage-like relationship' used in s 11A , as included in the Veterans Entitlements Act 1986 by 1989 amendments, was considered by Tamberlin J in Garner v Repatriation Commission (1998) 53 ALD 297. His Honour observed, relevantly to the current provisions of s 4(3) of the Act, that s 11A required regard to be had to all of the circumstances of the relationship, albeit it set out a number of matters which must be taken into account. 45 There have of course been a number of Tribunal decisions on the marriage-like relationship provisions and these are referred to in the text books cited above. It would, however, be multiplying discussions of various factual situations to canvass those decisions. 46 Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex: 1. Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3). 2. Must have regard to each of: (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; (d) any sexual relationship between the people; (e) the nature of the people's commitment to each other. 3. In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3). 4. Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it. 5. Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters: (a) financial cooperation; (b) cohabitation; (c) a sexual relationship; (d) cooperative household arrangements; (e) mutual commitment. 61 The Tribunal's general conclusion was that (at [45]): '... the weight of evidence supports the finding that at the relevant time Ms Pelka was in a marriage-like relationship....' This conclusion did not proceed, as one might have expected, from a weighing of the various factors against each other. It is plain that there were matters pointing in different directions. A decision-maker in applying the matters set out in s 4(3) should acknowledge that they are non-exhaustive and at least indicate that consideration has been given to whether there might be any other factors relevant to the difficult judgment of whether a 'marriage-like' relationship exists. Each of the individual matters listed in s 4(3) is accompanied by a non-exhaustive list of factors. Again, the decision-maker in each case should consider whether there are any other factors relevant to the particular matter listed see Garner (supra). The Tribunal quoted a passage from a decision of the Tribunal in Re: Secretary, Department of Family and Community Services and WAP [2000] AATA 7. It is not clear however from the reasons how it applied the non-exhaustive approach set out in the passage which it quoted.