Danica Temelkovska and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 637

[2012] AATA  637

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5298
Re	Danica Temelkovska
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms J Redfern, Senior Member
Date	21 September 2012
Place	Sydney

The decision under review is set aside.

…………[SGD]....…………….

Ms J Redfern, Senior Member

CATCHWORDS

SOCIAL SECURITY – Whether the Applicant was a member of a couple for the purpose of determining the rate of age pension payable – financial aspects of the relationship – nature of household – social aspects of any relationship – no evidence of commitment to each other

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

CASES

Lynam v Director-General of Social Security (1983) 52 ALR 128

Martyniak v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5

Re Pelka v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

REASONS FOR DECISION

Ms J Redfern, Senior Member

21 September 2012

1. Mrs Temelkovska lodged a claim for age pension with Centrelink on 20 July 2011.  She claimed that even though she and her husband, Mr Blagoj Temelkovski, were living in the same house, they had separated on 14 December 2010.  Her claim for the pension was rejected by Centrelink and this decision was subsequently affirmed by an authorised review officer of Centrelink on 13 October 2011.  Mrs Temelkovska applied to the Social Security Appeals Tribunal (SSAT) for review of this decision but on 30 November 20011, the SSAT affirmed the decision of Centrelink. 

2. Mrs Temelkovska applied for a review of the decision to this Tribunal on 8 December 2011.  

3. The issue for determination was whether Mrs Temelkovska was a ‘member of a couple’ for the purposes of the social security legislation at the time she applied for the age pension.  If so, Mrs Temelkovska will only be entitled to the age pension if Mr Temelkovski's income is below the relevant threshold.  The pension rate, if any, payable to Mrs Temelkovska on the basis that she is a member of a couple has not been determined by Centrelink as Mrs Temelkovska did not, and was unable because of a refusal by Mr Temelkovski to assist her, provide details of Mr Temelkovski’s assessable income.  This matter was not specifically considered by the authorised review officer of Centrelink or by the SSAT. If Mrs Temelkovska was not a member of a couple at the relevant time, the assessable income of Mr Temelkovski would be irrelevant to consideration of her claim. This is not in dispute.

   LEGISLATIVE FRAMEWORK

4. The relevant legislation in this matter is the Social Security Act 1991 (the Act). Section 43 deals with qualification for the age pension. There is no disagreement that Mrs Temelkovska is eligible for the age pension, but the Secretary submits that her claim was properly rejected, because, she is a “member of a couple” and Mrs Temelkovska did not provide details of Mr Temelkovski’s assessable income. Section 1064 of the Act determines the rate of pension payable. When a person is partnered, the partner’s income is taken into account when the rate payable is calculated.

5. The Act provides that a person is a “member of a couple” if the person is legally married to another person, and is not living separately and apart from the other person on a permanent or indefinite basis (section 4(2)(a)).  Section 4(3) of the Act states in determining whether a person is a “member of a couple” all of the circumstances of a relationship must be considered, including the following:

   s 4(3)(a)  the financial aspects of the relationship, including:

   (i)  any joint ownership of real estate or other major assets and any joint liabilities; and

   (ii)  any significant pooling of financial resources especially in relation to major financial commitments; and

   (iii)  any legal obligations owed by one person in respect of the other person; and

   (iv)  the basis of any sharing of day‑to‑day household expenses;

   (b)  the nature of the household, including:

   (i)  any joint responsibility for providing care or support of children; and

   (ii)  the living arrangements of the people; and

   (iii)  the basis on which responsibility for housework is distributed;

   (c)  the social aspects of the relationship, including:

   (i)  whether the people hold themselves out as married to each other; and

   (ii)  the assessment of friends and regular associates of the people about the nature of their relationship; and

   (iii)  the basis on which the people make plans for, or engage in, joint social activities;

   (d)  any sexual relationship between the people;

   (e)  the nature of the people’s commitment to each other, including:

   (i)  the length of the relationship; and

   (ii)  the nature of any companionship and emotional support that the people provide to each other; and

   (iii)  whether the people consider that the relationship is likely to continue indefinitely; and

   (iv)  whether the people see their relationship as a marriage‑like relationship.

   BACKGROUND FACTS AND THE EVIDENCE

6. Mr Temelkovski and Mrs Temelkovska were married in 1967 in Macedonia.  They migrated to Australia in 1969 and have three adult children and five grandchildren. They live in a four bedroom house in Jannali, where they have lived for many years. Their children have families and no longer live at home.

7. In 2009 Mrs Temelkovska left work as a result of illness. From this time she had no independent income and relied on Mr Temelkovski to give her money.  She said that Mr Temelkovski had always been difficult to live with and particularly frugal with money but after she stopped work, he refused to give her a proper allowance for her own needs and for presents for her grandchildren.  This became increasingly difficult but on 14 December 2010 matters came to a head when he refused to give her money to buy Christmas presents for their grandchildren.

8. Mrs Temelkovska said this upset her greatly and from that day she refused to wash Mr Temelkovski's clothes, cook his meals and sleep in the same bedroom.  She told Mr Temelkovski to move into the separate bedroom, which he did.  Before that, Mr Temelkovski and Mrs Temelkovska went shopping together, she cooked their meals and she would do Mr Temelkovski's laundry.  They did not have sexual relations, but this had been the case for a number of years.  They no longer went out socially together with friends and while they attended family functions, such as birthdays and Christmas, they travelled to those functions separately.  Mr Temelkovski continued to pay household bills, such as telephone, electricity, water and rates, but he did not give her money for food or other personal items.  Mrs Temelkovska said she used her superannuation savings, to which she obtained access after she ceased work.

9. It was common ground that Mrs Temelkovska cleans the house but not Mr Temelkovski's room.  She does the gardening and Mr Temelkovski mows lawns and does general maintenance.  They do not share any common areas, apart from the kitchen – Mrs Temelkovska watches TV in the lounge room Mr Temelkovski watches TV in the living room.

10. Mrs Temelkovska and Mr Temelkovski own their home jointly, which is unencumbered, but otherwise operate separate bank accounts and have always done so.  Prior to Mrs Temelkovska leaving work, she maintained her own bank account, into which her wages were paid.  Mr Temelkovski did the same.  Mr Temelkovski paid for bills and groceries and Mr Temelkovski paid the mortgage.  They shared their savings and occasionally went on holidays.  The house has been paid off and they do not have any joint debts.

11. When Mrs Temelkovska made her application for the age pension, she did not realise she could apply on the basis she was separated and it was not until she went to Centrelink that this was explained to her.  She made an application on the basis that she and Mr Temelkovski were separated, although living in the same house.  In her application, Mrs Temelkovska stated she wanted to live in her house "as long as possible".  She said she had no intention of applying for a divorce or selling the house at the time she made the application for the pension.

12. After Mrs Temelkovska made the application, Centrelink requested information in respect of Mr Temelkovski's assessable income.  Mrs Temelkovska received a letter from Centrelink dated 22 September 2011 requesting information and said that after receiving this letter, she asked Mr Temelkovski to provide this information to Centrelink. He told her that he had already provided information to Centrelink and refused to provide any further information.

13. Since her application for the age pension, Mrs Temelkovska has instructed lawyers to apply for a divorce from Mr Temelkovski.  She saw a lawyer in March 2012 about a divorce (there is a letter confirming this) and a letter from Mrs Temelkovska’s lawyer, Mr Kirco Jakimoski dated 11 July 2012 noted it that he would be drafting the application for divorce and affidavits in support shortly.  Mrs Temelkovska said she would proceed with a divorce.  When asked why she had not done so earlier, Mrs Temelkovska said she had not considered it. She also said that she had been hopeful things would change but has since realised that this was not the case. She said that she would like to continue living in the house and, provided Mr Temelkovski did not cause problems, she would be happy for him to remain in the home rather than having to sell the property.

14. Mr Temelkovski did not give evidence.

15. Mrs Vera Zipevsca, a long-time friend of Mrs Temelkovska, gave evidence by telephone.  She said that she had known Mrs Temelkovska for about 20 years.  Mrs Temelkovska told her that she and her husband were separated because she could “no longer tolerate him”.  He would never give her enough money.  Mrs Zipevsca said that Mrs Temelkovska told her that she and Mr Temelkovski were living in different rooms.  Mrs Zipevsca did not want to question Mrs Temelkovska further about this because she did not wish to pry - Mrs Temelkovska was very private.  Mrs Zipevsca said that Mrs Temelkovska and Mr Temelkovski frequently argued in front of her but she noticed that this had become worse after Mrs Temelkovska's illness and her subsequent retirement.  Mrs Temelkovska told her they did not go to social functions or out with friends anymore and this had been the case for a few years.  Mrs Temelkovska and Mr Temelkovski used to socialise together but this had stopped, she was not sure when, possibly about three and a half years ago.  Mrs Temelkovska had once said to her that she could not go out with Mr Temelkovski anymore and said words to the effect “we are finished”.

    CONTENTIONS OF THE PARTIES

16. Mrs Temelkovska contended that the relationship between her and Mr Temelkovski deteriorated after she retired in 2009 and on 14 December 2010 they separated as a result of arguments about money.  This separation has continued since this time.  Mrs Temelkovska and Mr Temelkovski are married but separated while living under the one roof.  They are not members of a couple. Mrs Temelkovska should be entitled to the age pension and Mr Temelkovski’s income should not be relevant to this consideration.

17. The Secretary contends that even though Mrs Temelkovska and Mr Temelkovski had a poor marriage, at the time Mrs Temelkovska made her application for the pension, they were still living together as members of a couple, they shared financial resources and, importantly, Mr Temelkovski paid the household bills – he provided significant financial support for Mrs Temelkovska.  While Mrs Temelkovska and Mr Temelkovski may have separate bedrooms, they shared many household activities.  Mrs Temelkovska had not commenced divorce proceedings and had only enquired about this some nine months after her application for the pension.  Mrs Temelkovska did not contemplate selling their house after the alleged separation and has showed a commitment to the relationship.  Mrs Temelkovska and Mr Temelkovski were members of a couple at the relevant time and Mr Temelkovska's assessable income is therefore relevant to consideration of the pension rate payable to her.  If the tribunal finds that Mrs Temelkovska is a member of a couple, the matter should be remitted for calculation of Mrs Temelkovska's pension based on Mr Temelkovski’s income.

    CONSIDERATION OF THE EVIDENCE

18. In order to make the correct and preferable decision regarding whether Mrs Temelkovska was a “member of a couple” in the relevant period, the Tribunal must assess the totality of the circumstances surrounding the relationship between Mrs Temelkovska and Mr Temelkovski.  While the indicia in s 4(3) of the Act must be addressed, they are not exhaustive nor intended to operate like a mechanical checklist. The indicia provide a benchmark for what was considered by the legislature, no doubt by reference to community standards, to be the essence of a “marriage-like” relationship. These factors are objective indicators but ultimately how they are assessed in their totality will be a matter of impression. As stated by Senior Member Creyke in Martyniak v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5 at 64, these are matters of fact and degree.

19. In Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, O’Loughlin J, when determining whether a husband and wife were “living separately and apart”, referred to a list of factors he considered might be relevant based on the statutory indicia in s 4(3) but stated at 170:

    It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

20. The factors set out in s 4(3) provide guidance to decision makers in forming a view about whether a relationship is marriage-like.  However, in many cases the analysis will be complex and challenging, as are many relationships, and it is useful to draw on the observations of Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131:

    Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other.  What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.  The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration.  In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

21. These observations should be taken into account when considering the evidence in the application of s 4(3) of the Act.

    FINANCIAL ASPECTS OF THE RELATIONSHIP

22. The financial dealings between two people and how they treat their assets, liabilities and obligations is an important, although not determinative, indicia of whether they are a “member of a couple” or in a marriage-like relationship.

23. Mrs Temelkovska and Mr Temelkovska own their house jointly and previously pooled income to pay for bills and expenses, although they have always had separate bank accounts.  Mr Temelkovski now pays all bills and provides money to Mrs Temelkovska, but this is because she is financially dependent on him.  She has drawn on her superannuation funds to meet her needs and has no other source of income.  The fact that Mr Temelkovski provides financial support to Mrs Temelkovska and did so as at July 2011 does not necessarily evidence a ‘marriage like relationship’ on the facts of this case.  The evidence from Mrs Temelkovska is that Mr Temelkovska does not provide adequate financial support for her and any support provided is apparently given reluctantly.  Mrs Temelkovska said she has been unable to visit a specialist to resolve her health issues because Mr Temelkovski will not pay the fees.  Prior to Mrs Temelkovska's retirement, Mrs Temelkovska and Mr Temelkovski pooled their assets and shared expenses.  Mrs Temelkovska stopped working and Mr Temelkovski paid for all expenses but became increasingly resistant to this.  When Mrs Temelkovska and Mr Temelkovski moved into separate rooms, on Mrs Temelkovska's account financial issues become became even more difficult for her.

24. While it appears that the financial dealings of Mrs Temelkovska and Mr Temelkovski have always involved some degree of individual accounting rather than seamless pooling, since Mrs Temelkovska's retirement and, in particular since the events of December 2010, their financial dealings have become even less connected.  I am satisfied from the evidence of Mrs Temelkovska that Mr Temelkovski does not provide meaningful financial support for her, which has required Mrs Temelkovska to either draw upon her savings or do without.  The fact Mrs Temelkovska does not wish to sell her home and wants to continue to live in the property means that she and Mr Temelkovski will continue to jointly own property.  They will both have the benefit of this asset if they continued to live in the home together and, by reason of this, will be providing each other with some financial support.  However, joint ownership and continued joint occupation of the matrimonial home is not determinative and it is expressly contemplated by the Act that a person who is married may live separately, but together, under one roof.  No doubt there are many couples who continue to do this because of financial necessity.

25. On balance, I do not consider that the financial dealings between the Mrs Temelkovska and Mr Temelkovski, particularly since December 2010, are indicative of a marriage like relationship.

    NATURE OF THE HOUSEHOLD

26. The uncontradicted evidence is that from December 2010 Mr Temelkovska and Mr Temelkovska slept in separate bedrooms.  They share the kitchen, but at different times, and watch television in different rooms.  They share certain household duties but do not shop or cook together and do their own laundry.  Mrs Temelkovska does not clean Mr Temelkovski’s room. This is not indicative of a marriage like relationship.

    SOCIAL ASPECTS OF THE RELATIONSHIP

27. According to Mrs Temelkovska, she and Mr Temelkovski no longer attend social and family functions together and have not done so since the “separation” in December 2010.  Mrs Zipevsca confirms this and said Mrs Temelkovska told her that she and Mr Temelkovski were separated. Mrs Zipevsca cannot recall precisely when but thought this was a few years ago.  Mrs Zipevsca said Mrs Temelkovska did not like to talk about her private life but given this reluctance, it is significant that she told Mrs Zipevsca about the separation.  Mrs Zipevsca also gave evidence that she independently observed a change over the past few years in the relationship between Mrs Temelkovska and Mrs Temelkovska.  The weight of this evidence suggests Mrs Temelkovska and Mr Temelkovski were not operating as members of a couple for, at least, the past few years. 

    ANY SEXUAL RELATIONSHIP BETWEEN THE PEOPLE

28. In considering, section 4(3)(d) of the Act, I accept the evidence of Mrs Temelkovska that she and Mr Temelkovski have not had a sexual relationship with each other for many years. This is not in itself determinative of whether a person is a “member of a couple” in terms of the legislation.

    NATURE OF THE PEOPLE’S COMMITMENT TO EACH OTHER

1. The nature of the commitment between Mrs Temelkovska and Mr Temelkovski is an important consideration on whether they were members of a couple during the relevant period. According to s 4(3)(e), this commitment is to be assessed by the length of the relationship, the nature of any companionship and emotional support that they provided to each other during the relevant period, whether Mrs Temelkovska and Mr Temelkovski considered that the relationship was likely to continue indefinitely and whether Mrs Temelkovska and Mr Temelkovski saw their relationship as a marriage-like at the relevant time.

2. In Re Pelka v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92, at [27] their Honours stated:

   The tribunal [the AAT] was satisfied that … Ms Pelka and Mr Kuhl displayed a special commitment to each other, both physically and emotionally, which was qualitatively different from the commitment that either had to any other person.

   And at [30]:

   The matter to which s 4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly, the Tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other.  It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person.  The fact that the commitment that Ms Pelka had to Mr Kuhl was qualitatively different from the commitment that Ms Pelka had to any other person is clearly relevant to the nature of her commitment to Mr Kuhl.  The same reasoning applies in relation to the commitment of Mr Kuhl to Ms Pelka.  The Tribunal, as the decision maker, had regard to precisely the matter to which it was required to have regard, namely, the nature of the commitment of Ms Pelka and Mr Kuhl to each other. 

3. The relationship between Mrs Temelkovska and Mr Temelkovski has been enduring. They have been married for over 40 years and have three children together.  Mrs Temelkovska said that she did not consider a divorce until March 2012 because she was happy to continue living in her home with Mr Temelkovski.  Mrs Temelkovska has since instructed lawyers to divorce Mr Temelkovski but the relevant time to consider her commitment to Mr Temelkovski was in July 2011, not now.  Mrs Temelkovska said she had previously hoped that things would change.  This suggests that she still had some commitment to the relationship prior to March 2012.  While Mr Temelkovski did not give evidence, the Tribunal can infer his commitment to the relationship was affected by the separation in December 2010 because there is evidence from Mrs Temelkovska and Mrs Zipevsca that Mrs Temelkovska and Mr Temelkovski argued more in the past few years and Mr Temelkovski became increasingly resistant to giving money to Mrs Temelkovska.

4. Notwithstanding that Mrs Temelkovska and Mr Temelkovski had been married and living together for such a long time, I consider it was a significant step in their relationship that Mrs Temelkovska effected a physical separation in the house, in their social outings and in dealing with friends and family. While I accept this marriage was difficult and had probably been difficult for many years, December 2010 was a turning point for Mrs Temelkovska and for the relationship. The preponderance of evidence, supported by the information provided to Centrelink by Mrs Temelkovska, the consistent detail provided by Mrs Temelkovska during her evidence and the evidence from Mrs Zipevsca, is that many things changed after December 2010. I accept that there was a genuine change in circumstances at this time which was caused by Mrs Temelkovska’s anger and frustration that Mr Temelkovski would not give her enough money to buy presents for their grandchildren. While it was clear that Mrs Temelkovska frustration was increasing over time since 2009, it was this single issue that pushed her to enforce a “separation”, apparently to her detriment.    

   CONCLUSIONS

5. In reviewing the indicia in s 4(3) of the Act, I must consider the totality of the relationship and the weight to be accorded to each of the factors. 

6. On reviewing the totality of the evidence, I have come to the view that Mrs Temelkovska was not a “member of a couple” at the relevant time. There is little evidence that Mrs Temelkovska and Mr Temelkovski pooled assets and income, other than evidence of that Mr Temelkovski provided Mrs Temelkovska with the minimum in financial support after their physical separation in the house. Mrs Temelkovska was required to supplement this with her own savings in any event. After December 2010, Mrs Temelkovska and Mr Temelkovski did not socialise and lived relatively independently of each other, even though they were living under the same roof. Mrs Temelkovska said Mr Temelkovski’s refusal to give her money for the grandchildren changed their relationship and there is independent evidence to corroborate her evidence. The fact Mrs Temelkovska did not seek a divorce at that time and wants to remain living in the matrimonial home is not determinative.

   DECISION

7. I therefore set aside the decision under review.

I certify that the 35 preceding  paragraphs (thirty five) are a true copy of the reasons for the decision herein of Senior Member J L Redfern.

....................[sgd]…...........................

Associate

Dated  21 September 2012

Date of hearing	16 July 2012
Representative for the Applicant	In person
Representative for the Respondent	Mr J Larcombe Program Litigation & Review Branch, Centrelink