David Norman and Secretary, Attorney-General's Department
[2015] AATA 92
•20 February 2015
[2015] AATA 92
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2164
Re
David Norman
APPLICANT
And
Secretary, Attorney-General's Department
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 20 February 2015 Place Sydney In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 (Cth):
1.the decision of the Social Security Appeals Tribunal made 4 April 2014 to reject Mr Norman's claim for an Australian Victim of Terrorism Overseas Payment, is set aside; and
2.the matter is remitted for reconsideration in accordance with the direction that Mr Norman was a secondary victim of a declared terrorist act within the meaning of subsection 1061PAA(3) of the Social Security Act 1991 (Cth).
.............................[sgd]...........................................
Deputy President J W Constance
Catchwords
SOCIAL SECURITY – victims of terrorism payment – secondary victim of a declared overseas terrorist act – close family member – partner – whether Applicant a member of a couple with the deceased – whether relationship was a de facto relationship – decision set aside and remitted
Legislation
Social Security Act 1991 (Cth) ss 4, 4(2), 1061PAA
Social Security (Declared Overseas Terrorist Act) Declaration 2013- JakartaCases
Lynam v Director-General of Social Security (1983) 52 ALR 128
Pelka v Secretary, Department of Family & Community Services [2006] FCA 735REASONS FOR DECISION
Deputy President J W Constance
20 February 2015
The Social Security Act 1991 (Cth) was amended in 2012 to provide for payments to certain Australian residents affected by acts of terrorism committed outside Australia.
Mr Norman lodged a claim for a payment under the Act in October 2013. His claim relates to the death of Ms Kumalawati. Ms Kumalawati was killed in the bombing of the Australian Embassy in Jakarta in 2004. The basis of Mr Norman’s claim is that he was the partner of Ms Kumalawati at the time of her death.
Centrelink concluded that Mr Norman was not Ms Kumalawati’s partner at the time. This decision was affirmed by the Social Security Appeals Tribunal. Mr Norman has applied to this Tribunal for a review of the decision of the Social Security Appeals Tribunal.
For the reasons which follow, the decision under review will be set aside. I have decided that Mr Norman was Ms Kumalawati's partner when she was killed in the bombing.
LEGISLATION
Subsection 1061PAA(1) of the Act provides, in part:
(1) A person is qualified for an Australian Victim of Terrorism Overseas Payment if:
(a)the person is … a secondary victim of a declared overseas terrorist act; and
(b)the person and the person’s close family members were not involved in the commission of the terrorist act; and
(c) the person:
(i)is an Australian resident on the day the terrorist act occurred; or
(ii) is covered by a determination under subsection (6).
The Jakarta bombing is a “declared overseas terrorist act”.[1] The Secretary concedes that Mr Norman meets the requirements of subparagraphs 1061PAA(1)(b) and (c). I am satisfied that these concessions are appropriate.
[1] Social Security (Declared Overseas Terrorist Act) Declaration 2013- Jakarta.
Secondary victim is defined in subsection 1061PAA(3):
(3) A person is a secondary victim of a declared overseas terrorist act if the person is a close family member of a person who:
(a) was in the place where the terrorist act occurred; and
(b)died, before the end of 2 years starting on the day the terrorist act occurred, as a direct result of the terrorist act.
“Close family member” includes a person’s partner.[2] Partner is defined in section 4 of the Act :
partner, in relation to a person who is a member of a couple, means the other member of the couple.
[2] Social Security Act 1991 (Cth) s 1061PAA(4)
A person is a member of a couple when: [3]
[3] Social Security Act 1991 ss.4(2).
(b) all of the following conditions are met:
(i)the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii)the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship … .
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship.
THE ISSUE TO BE DECIDED
It is conceded that in this case subparagraphs (i), (ii), (iv) and (v) are met. These are proper concessions on the evidence.
The only issue for determination is whether, in the opinion of the Tribunal, the relationship between Mr Norman and Ms Kumalawati at the time of her death was a de facto relationship.
EVIDENCE AND FINDINGS OF FACT
Mr Norman provided a statement dated 18 September 2014[4] and gave evidence. He impressed me as an honest witness who gave his evidence carefully and to the best of his recollection. The events he was asked to recall occurred up to 16 years ago and at times he acknowledged that his memory may not have been accurate.
[4] Exhibit A1.
I make the following findings of fact based on Mr Norman’s evidence unless stated otherwise.
In 1997 or 1998, Mr Norman was holidaying in Bali when he met Ms Kumalawati and a friendship developed. He returned to Bali in November 1998 to spend time with her. It was during this visit that their daughter, A,[5] was conceived.
[5] Consistent with Tribunal practice, the daughter of Mr Norman and Ms Kumalawati will be referred to in these reasons using the pseudonym ‘A’.
After he returned to Australia, Mr Norman kept in contact with Ms Kumalawati. She soon told Mr Norman that she was pregnant. They discussed marriage. Mr Norman told Ms Kumalawati that he was too young to marry, but that he would support her and their child. They discussed the possibility of Ms Kumalawati and A coming to live in Australia. Nevertheless, at about this time Ms Kumalawati told Mr Norman that she was planning to travel to Italy to care for an ill relative.
Mr Norman travelled to Jakarta in about May 1999 and spent further time with Ms Kumalawati. They stayed together in a hotel and further discussed the possibility of marriage.
A was born in August 1999. In late August 1999, Mr Norman travelled to Jakarta to see Ms Kumalawati and their new daughter. They stayed together in a hotel. After further discussions as to their future, Ms Kumalawati agreed that she would come to Australia with A and live with Mr Norman.
From the time A was born, Mr Norman regularly paid money into a bank account in his name but to which Ms Kumalawati had access. The amounts varied. Mr Norman believed that he was fully financially supporting both Ms Kumalawati and A. Often Ms Kumalawati would ask him for money to meet a specific expense. Provided he had funds available, Mr Norman would comply with her requests.[6] From time to time Ms Kumalawati would consult Mr Norman in relation to aspects of A’s upbringing.
[6] Transcript 19/09/14 p.147.
In mid-October 1999, Mr Norman again travelled to Jakarta and to Bali to spend more time with Ms Kumalawati and A. They spent time together in a hotel and with members of Ms Kumalawati's family. Mr Norman assisted Ms Kumalawati in completing applications for tourist visas to Australia for herself and their daughter. At this stage it was planned that they would live together in Australia. Mr Norman still believed that he was too young to marry and told Ms Kumalawati this.
After he returned to Australia from this trip, Ms Kumalawati told Mr Norman that the visa applications had been refused. The reasons for these refusals are unclear.
As Mr Norman was aware that his name was not on A’s birth certificate, he arranged for testing to be carried out as a means of proving his paternity to the Australian authorities. He had never doubted that he was her father. This was confirmed by the testing carried out in Singapore in April 2000.
Ms Kumalawati and A lived in Italy between October 1999 and April 2000. Mr Norman understood at the time that Ms Kumalawati was caring for her sick relative. They kept in contact by telephone.
Mr Norman proposed to Ms Kumalawati in 2000. She accepted and he gave her a ring which she wore on all subsequent occasions they were together. Sometime in the same year Mr Norman gave Ms Kumalawati approximately $20,000 towards the purchase of a residential property in Indonesia. It was intended that they purchase the property together. He is unaware of the details of this property but believes that Ms Kumalawati's sister resided in the property and paid rent to Ms Kumalawati. He believes the property passed to Ms Kumalawati's family on her death.
In late 2000 Mr Norman met Ms Kumalawati and A in Singapore where they spent three weeks together. They took the results of the paternity test to the Australian Embassy in Singapore and Ms Kumalawati again applied for tourist visas for herself and A. After Mr Norman returned home from this trip he was advised that the applications had again been refused.
Mr Norman said that sometime in 2002 he met Ms Kumalawati and A in Thailand where they stayed together for about one month in a hotel. Ms Kumalawati and A travelled to and from Italy where, so far as Mr Norman was aware, she was still caring for her relative. The Immigration authorities have no record of Mr Norman's leaving Australia at this time although Mr Norman has been told that records may have been lost.
Ms Kumalawati's passport shows that she was in Thailand from 18 April 2000 until 3 May 2000 and from 30 October 2000 until 24 November 2000.[7] It does not show that she entered Thailand in 2002.
[7] Exhibit R3 attachment C.
On the basis of this evidence, I am satisfied that Mr Norman is mistaken in his recollection that he and Ms Kumalawati spent time together in 2002. However, I am satisfied that they did spend about three weeks together in Thailand in 2000.
Ms Kumalawati and A returned to live in Italy in late 2000 or early 2001.
In March 2001, Mr Norman received a telephone call from Ms Kumalawati. She told him that she and A were in Sydney staying at a hotel with her uncle, having arrived in Australia earlier that day. Mr Norman was unaware of any plans for Ms Kumalawati and A to travel to Australia at that time. Ms Kumalawati also told Mr Norman that she was travelling on a six month visa, but that her uncle was returning to Italy in a couple of days. She agreed to Mr Norman's request that she and A stay with him at his parents’ home.
After some time living in his parents’ home, Mr Norman, along with Ms Kumalawati and A, moved into rented accommodation in a nearby suburb. They furnished the home with furniture which Mr Norman had at his parents’ home and with additional furniture he purchased at the time. They later moved back to live with Mr Norman's parents when the rented accommodation proved to be unsuitable.
Contrary to what she had told Mr Norman, Ms Kumalawati's visa was for three months, not six. However, with the assistance of Mr Norman, she obtained an extension for a further three months.
Ms Kumalawati and A stayed with Mr Norman in Australia from March 2001 until August 2001. During this time Mr Norman provided for all of their living expenses, including the rent on the leased premises. They attended social functions as a couple and went on a holiday to Queensland with Mr Norman's family. They attended Mr Norman's family Church with A and arranged for her to be baptised. They resumed a sexual relationship as they had done on all previous occasions they were together.
While Ms Kumalawati was in Australia she and Mr Norman opened a joint bank account (with a joint credit card) and also an account in her name alone. Mr Norman paid money into both accounts. The money was withdrawn, in part, by Ms Kumalawati. Both accounts remained open until after Ms Kumalawati's death.
When Ms Kumalawati and A left Australia in August 2001, Mr Norman returned to live with his parents. He believed that at some time they would return to Australia but he was unsure when.
After the visit to Australia (the evidence does not establish how long after) Mr Norman became concerned as to Ms Kumalawati's living arrangements in Italy. He made enquiries of Ms Kumalawati's sister and was told by her that Ms Kumalawati was married and living in Italy with her husband. When he spoke to Ms Kumalawati she told him that she was married when they first met. She stated that her husband knew that Mr Norman was A’s father. She later said that she married her husband after she became pregnant, as Mr Norman would not marry her. Mr Norman did not contact Ms Kumalawati for approximately one month after learning of this situation.
When Mr Norman and Ms Kumalawati resumed contact by telephone, Ms Kumalawati said that her marriage had failed, although she and her husband continued to live under the one roof. She said that she planned to obtain a divorce and that she wanted to come to Australia with A and live with Mr Norman. Thereafter they resumed almost daily telephone contact. Mr Norman continued to provide regular financial support for Ms Kumalawati and A.
Along with regular financial support, Mr Norman also paid for their travel expenses on the occasions they met outside Australia. So far as he was aware, Ms Kumalawati had no other source of income and he believed he was fully supporting both her and A. He believed that they were living in her husband’s apartment and were not paying rent. He provided for other living expenses.
Mr Norman commenced new employment in 2003. In August 2004, Mr Norman became entitled to his first annual leave in his new job. He arranged to meet Ms Kumalawati and A in Indonesia. He planned to “reconcile” their relationship and arrange for Ms Kumalawati and A to come to Australia and live with him. On many occasions during 2003 and 2004, Mr Norman and Ms Kumalawati had spoken of their plans for Ms Kumalawati and A to come to Australia and live with Mr Norman on a permanent basis.
Before he travelled to Indonesia, Mr Norman prepared an application for A to be granted Australian citizenship by descent. He forwarded this to Ms Kumalawati in Italy so that she could lodge the application with the Australian Embassy in Rome. The Extract from Register of Citizenship by Descent [8] shows that citizenship was granted to A on 25 June 2004 and was registered in Rome, Italy.
[8] Exhibit R1 p.161.
On 8 August 2004, Mr Norman travelled to Bali where he met Ms Kumalawati and A. Within a couple of days they travelled to Jakarta where they lodged two applications with the Australian Embassy – an application for an Australian tourist visa for Ms Kumalawati and an application for an Australian passport for A.
Mr Norman had three weeks leave before he was required to return to his employment. He had purchased a return ticket to travel home on 27 August 2004. He hoped that the visa and the passport would be issued in that time and that he, Ms Kumalawati and A would travel to Australia together. He had discussed this proposal with Ms Kumalawati and she agreed. They planned for Ms Kumalawati to apply for a spouse visa in Australia once she was divorced from her husband.
The documents were not available by the time Mr Norman had to return home. He understood that there was a delay in issuing their daughter’s passport as it was necessary to have an Australian complete a statement as to her identity. Mr Norman travelled back to Australia on 27 August 2004 as planned. Ms Kumalawati and A remained in Indonesia with her family.
During the three weeks Mr Norman spent with Ms Kumalawati and A in Indonesia they stayed in a hotel and engaged in activities as a family. Mr Norman helped with the daily care of his daughter. They spent time with friends and had meals together in restaurants. Their expenses were met from the accounts into which Mr Norman alone had been making payments. Mr Norman and Ms Kumalawati resumed their sexual relationship.
Some time prior to August 2004 (the evidence does not disclose when) Mr Norman nominated Ms Kumalawati as the sole beneficiary of his superannuation entitlements.
Shortly after he returned to Australia Mr Norman was told by Ms Kumalawati that both the visa and the passport were ready for collection from the Australian Embassy in Jakarta. Ms Kumalawati booked airline tickets for herself and A to travel to Australia. Mr Norman paid for these tickets.
On 9 September 2004, Ms Kumalawati and A travelled to Jakarta to collect the travel documents. When they were at, or near, the Embassy a bomb exploded. Ms Kumalawati died in the blast and A was critically injured.
Mr Norman and his mother immediately travelled to Singapore and spent several weeks visiting A in hospital. It was there that he met Mr Musu, Ms Kumalawati's husband, and learned, for the first time, that Mr Musu believed that A was his (Mr Musu’s) daughter.
When A was discharged from hospital Mr Norman agreed that she should return to Italy to continue living with Mr Musu. At that time Mr Norman decided that this was in his daughter’s best interests, despite his very strong desire that she come to Australia where he would care for her.
There is additional evidence which I have relied in reaching the above findings of fact. This evidence is outlined below.
The evidence of Mr Robert Norman, Mr Norman's father
Mr Robert Norman provided a statement dated 7 September 2014[9] and gave evidence.
[9] Exhibit A24.
Mr Norman confirmed that his son and Ms Kumalawati lived as a couple in his home and in a rented property during a six month period in 2001.
Sometime prior to Mr David Norman travelling to Bali in August 2004 he told his father that he was intending to organize a visa for Ms Kumalawati and a passport for A so they could travel to Australia. He also said that they planned to marry once Ms Kumalawati was divorced from her husband.
In his statement Mr Norman related events which occurred on his son’s return from Bali in August 2004:
I picked David up at the airport and I was surprised that he was not with Eva and [A]. He told me that they are back together and in a permanent relationship and that they had sorted out there [sic] issues, however they had a hold up with the embassy in relation to [A]’s Passport was not ready yet and that Eva will pick it up in a weeks [sic] time and then they would fly to Sydney. During this week David started to pack his things and commenced packing Eva's and [A]'s clothes and housing items which were left in storage at my home in the garage. David expressed to me that he and Eva were so happy and their lives and future was now complete and can't wait till they arrive and he will be getting married in the near future. David made some enquires with some local schools in relation to [A] Education commencing the following year. I spoke with Eva on the telephone a few nights before the bombing. She told me that she intended on moving to Sydney permanently and David and she will get married. She thanked me for letting them stay at Miranda house and told me she should arrive next week and she was really happy and looking forward to the move to Sydney.
I am satisfied that Mr Robert Norman was an honest witness. I accept his evidence.
The evidence of Mr Luke Norman, Mr Norman's brother
Mr Luke Norman provided a statement dated 5 September 2004[10] and gave evidence.
[10] Exhibit A26.
In his statement Mr Norman said, in part:
After David arrived back home in Sydney from Bali I spoke with him again. He told me that both him and Eva had made a joint decision together to get back together and for Eva and [A] to move to Sydney. He told me he had a great holiday and both Eva and David were really happy and looking forward to a happy future in Sydney together. David told me that Mum and Dad were letting him and Eva stay together at their Miranda rental property at a cheaper rental rate. He told me that as soon as Eva moves here she will apply for a divorce and that they will get married as soon as possible and apply for a marriage visa as [A] is an Australian. During this week I helped David pack some of their clothes and [A]'s toys to assist David with the move.
The evidence of Mr Little
Mr Little has been a friend of Mr Norman since they were 18 years old and is a work colleague. He provided a statement dated 14 September 2014[11] and gave evidence.
[11] Exhibit A27.
Mr Little sated, in part:
David went to Bali during August and returned home a few weeks later. I caught up with David in late August 2004 and he told me that he had a great time in Bali with his daughter and partner Eva. He told me that Eva and he were now back together and they were both coming to Sydney to live with him at Miranda as his dad owned a house in Miranda. He told me that they were both really happy and they were planning and preparing for a life for both of them in Miranda. I spoke with Eva on one occasion via David's mobile phone and she told me that she can't wait to catch up in Sydney and she was really happy and she was back with David and they were going to get married soon.
I am satisfied that Mr Little was an honest witness and I accept his evidence.
The evidence of Mr Sugiharta
Mr Sugiharta provided a statement dated 20 August 2014[12] and gave evidence by telephone. He has been a close friend of Mr Norman since 1998. He met Ms Kumalawati and A on many occasions when they were in Indonesia with Mr Norman, including several meetings in the weeks before Ms Kumalawati died.
[12] Exhibit A22.
Mr Sugiharta stated that during the week before she was killed, Ms Kumalawati told him that her marriage was not happy. He was uncertain whether Ms Kumalawati said that she was going to apply for a divorce or that she said that she had already done so. She also told him that she was planning to apply for a visa to allow her to live in Australia with A and Mr Norman and invited him to visit them there.
I am satisfied that Mr Sugiharta was an honest witness. I accept his evidence.
The evidence of Ms Tobing
Ms Tobing was a close friend of Ms Kumalawati since 1998 when they were neighbours in Bali. She has known Mr Norman since about the time she first met Ms Kumalawati.
In early September 2004, Ms Kumalawati told Ms Tobing that she wanted to move to Australia with Mr Norman and that she was travelling to Jakarta to collect her visa to go to Australia. She also said to Ms Tobing that she was in the process of getting a divorce from her Italian husband.
I am satisfied that Ms Tobing was an honest witness and I accept her evidence.
Evidence of Mr De Alwis
Mr De Alwis and Mr Norman have been friends since about 1998. He provided a statement dated 15 September 2014[13] and gave evidence.
[13] Exhibit A23.
During 2001, when Ms Kumalawati and A were living with Mr Norman in Australia, Mr De Alwis attended numerous social functions with them. He understood they were living as de facto husband and wife.
In his statement Mr De Alwis said, in part:
Many of our mutual friends attended their home for parties, including Harry Little. David and Eva also attended many functions together with our group of friends as a couple. They appeared as if they loved each other and cared greatly for each other. David and Eva stayed together for about six months in Sydney and Eva then left David to return home to Indonesia. David went on a number of occasions to meet Eva and [A] overseas. David would often call Eva and vice versa. I was aware of David making calls to Eva, and her calling him, during late night fishing trips.
……
I travelled to Singapore and met with David while [A] was in hospital. I offered my support during this distressing period in his life. I stayed with David and his mother for over a week in Singapore. David was really upset about the situation- he was not sleeping and was spending all of his moments at [A’s] bedside. I had to strongly push him to eat and drink, and a Doctor was called to assist him with getting some sleep. David told me that Eva was coming to live with him and everything was working out with their relationship. He told me Eva was going to leave Manuel as she wasn’t happy with him and she loved David and wanted to live with David in Sydney.
I am satisfied Mr De Alwis was an honest witness and I accept his evidence.
Photographs and cards
Several photographs depicting Ms Kumalawati, Mr Norman and A are in evidence. Of particular relevance are the following photographs taken in Bali in August 2004.
Two photographs show Ms Kumalawati, Mr Norman and A together. One[14] shows them casually dressed, standing together with Mr Norman holding A. It appears to have been taken in a public space. The second[15] shows them wearing traditional Bali wedding dress.
[14] Exhibit A7.
[15] Exhibit A11.
Two photographs depict Ms Kumalawati and Mr Norman standing together[16], in one case wearing the traditional dress shown in the earlier photograph to which I have referred. In both photographs each appears to be demonstrating affection to the other.
[16] Exhibits A8 and A10.
Another photograph depicts Ms Kumalawati, Mr Norman, A and the parents of Mr Sugiharta. The photograph was taken at the parents’ home in Bali.
Also in evidence is a birthday card[17] received by Mr Norman referring to his 25th birthday, which occurred in June 2003. The card shows a photograph of Ms Kumalawati and A. On the card Ms Kumalawati wrote “From: [A] & Eva We love u & miss u so much”. Ms Kumalawati also sent Christmas cards to members of Mr Norman's family for Christmas 2003.[18]
[17] Exhibit A16.
[18] Exhibits A15, A17, A19.
Mr Norman was also sent a postcard from the Canary Islands by Ms Kumalawati and A.[19] The postcard reads, in part, “Kiss From Us From Spanyol”. According to the statement of Ms Kumalawati’s husband, Mr Musu,[20] their holiday to the Canary Islands took place in the European summer of 2003.
[19] Exhibit A18.
[20] Exhibit R3.
The evidence of Mr Musu
Mr Musu provided a statement dated 23 September 2014[21] and gave evidence.
[21] Exhibit R3.
Mr Musu met Ms Kumalawati in Bali in 1998. They married in Italy in March 1999.
In his statement Mr Musu said, in part:
I travelled with her also to Australia in 2001. She had told me that she had a cousin, his name Pandu, who was a Lufthansa pilot and he regularly travelled from Frankfurt to Sydney for work. I knew sometimes she talked to him by phone and she told me he was someone who could help us to get a new job and perhaps move together to Australia in the near future. We spent together our holiday in Sydney, but after 10 days I had to return to Italy and back to work.
Eva spent 6 months in Australia in 2001 with [A] and then they returned to Italy in August 2001. When I left her in Sydney, she still had some days of accommodation available at the hotel where we spent our holiday, but she told me that her cousin would soon be back in town from a flight and could accommodate her in his house because very soon he would be back to work overseas. She said to me that Pandu was happy to let her stay in his house all the time. I reminded her several times that there would have been some issues regarding her visa after 3 months but she assured me that it would seek to apply for an extended visa with the help of her cousin.
I knew that she would get some money from her cousin, but I was convinced that he was just a relative who wanted to help Eva with some gifts. During all our years spent together in Italy, I’ve never seen her handling a lot of money. Though Eva never worked in Italy, except for one year, when I got her a small job, I have always contributed financially to the support of my family.
Maybe, while Eva and I lived together, I was a little bit suspicious of phone calls she would have with her 'cousin' Pandu. However, as those phone calls were not very frequent, I did not pay much attention on that as she was with me all the time; I did not think to question her about it. She lived with me and everything was good.
I always supported Eva and [A] financially. I always worked and always provided for my family by buying food, clothes, travel and other things that were needed.
1 must strongly emphasize that Eva and I were never separated or living in separate bedrooms. We always lived like a normal couple and shared a bed. It is absolutely not true that we became separated or that I wanted to divorce Eva. We never started a separation process at the court. Eva did not ask me for a divorce at all.
I did not know about David Norman's "connection" with Eva until after the bombing in Jakarta in September 2004. I found out only after the bombing that he was the biological father of [A].
Before the bombing, I did not know that Eva and David Norman spent some time together. However, I believe that David knew about our marriage from about 1999. I believe my wife Esti, like the rest of the family, were convinced that David was just a friend of Eva. As far as I know from them, he never introduced himself to them as a boyfriend, fiancé or whoever.
In July 2004 Eva really wanted to go to Indonesia because she had not seen her family in a long time. We agreed that she could go and we had planned that she would return after three months in October 2004.1 paid for Eva and [A]’s plane tickets to travel from Italy to Indonesia.
Eva never said to me she was leaving Italy. When she left in July 2004 she did not say she was leaving forever. I expect her to return in October 2004 and she never told me otherwise. I stayed in Italy in 2004 because I could not get holidays. I let Eva go to meet her family.
...
I discovered that Eva had spent some time with David after the bombing and that he was [A’s] biological father. But before the bombing Eva and I was a normal couple.
When he gave evidence Mr Musu said that Ms Kumalawati travelled to Indonesia on July 2004 and that he expected her to return to Italy in October 2004. He believed she had a return ticket but that it had expired whilst she was still in Indonesia and that she was in the process of organizing a new ticket when the bombing occurred. He later said that he was unsure if Ms Kumalawati had a return ticket.[22]
[22] Transcript 30/09/14 p.243.
When cross-examined, Mr Musu said that Ms Kumalawati told him that she had a close friend who lived in Australia. He said also that he did not know that Ms Kumalawati was going to the Australian Embassy on the day of the bombing. However he said also that the night before her death she told him that she might go to the Embassy the following day to ask for information about a visa.
Mr Musu said that, at the time she died, Ms Kumalawati “was trying to get a visa for Australia to be able to work in Australia.”[23] His evidence was vague as to what was planned although he did say that it was proposed that he travel to Australia also. There is no evidence that Mr Musu was taking any steps to obtain the necessary visa for himself.
[23] Transcript 30/09/14 p-247.
Mr Musu was unaware that Ms Kumalawati and A spent three weeks in Thailand in April-May 2000 and again in October – November 2000.
CONSIDERATION
The Act states that in coming to a conclusion about the nature of a relationship, regard must be had to all of the circumstances of that relationship.[24] It goes on, in subsection 4(3), to provide a list of non-exhaustive factors to which the decision-maker is to have particular regard. These are:
[24] Social Security Act 1991 (Cth) 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, or in a de facto relationship with, 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 or a de facto relationship.
In determining whether Mr Norman and Ms Kumulawati were in a de facto relationship, I must look at the relationship as a whole and not only the factors set out in subsection 4(3) above.[25]
[25] Pelka v Secretary, Department of Family & Community Services [2006] FCA 735, [46].
I am satisfied that in 2001, for a period of six months, Mr Norman and Ms Kumalawati lived in what would ordinarily be regarded as a de facto relationship. However, it is not necessary that I determine whether this relationship was a de facto relationship within the meaning of the Act as it is clear that at some time in the two years prior to July 2004, their de facto relationship ceased. This was notwithstanding that their relationship as A’s parents continued.
In my view, if Mr Norman and Ms Kumalawati were in a de facto relationship within the meaning of subsection 4(2)(b)(iii) of the Act at the time of her death, that relationship started no earlier than about 8 August 2004 when they met in Bali. It is this period which I now turn to consider.
I must consider the relationship between Mr Norman and Ms Kumalawati immediately prior to her death, as it is necessary to decide whether Mr Norman was a partner and therefore a close family member of Ms Kumalawati at that time.
If I decide that Mr Norman was in a de facto relationship with Ms Kumalawati at the time she died, it is not necessary to determine when that relationship commenced. The Act does not require the relationship to have been in existence for a specified period. However, in this case, the history of the relationship between the two is relevant to understanding their relationship on 9 September 2004.
The financial aspects of the relationship
Mr Norman and Ms Kumalawati did not have any joint assets or liabilities nor was there any significant pooling of financial resources apart from Mr Norman's contribution to the purchase of the Bali property. It is relevant that, on the evidence available, Ms Kumalawati had neither income nor assets which could have been pooled.
From the time of A’s birth Mr Norman fulfilled his legal obligation to support her financially and he had provided significant financial assistance for Ms Kumalawati. This support was not limited to a fixed amount but was given at regular intervals depending on the needs of both A and Ms Kumalawati.
The arrangements as to the deposit and withdrawal of funds into and from the account were longstanding and continued up to the time of Ms Kumalawati's death. The only bank records available show that in the period 13 April 2004 and 2 August 2004 (i.e. in the months before Mr Norman joined Ms Kumalawati in Bali) $3,171.09 was deposited into the account and at least $2728.50 was withdrawn at overseas banks.[26]
[26] Exhibit R1 pp.105-110.
During the time they were together in Bali, Mr Norman met day-to-day living expenses. There is no evidence to suggest that Ms Kumalawati contributed financially.
The nature of the household
Household refers to a group of people. There does not need to be a place of permanent residence for a household to exist.[27]
[27] The Macquarie Dictionary defines ‘household’ to mean ‘the people of a house collectively’.
I do not accept the argument that “staying in a hotel while on a short overseas holiday is [not the] equivalent to the establishment of a joint household.” [28] Depending on the relationship of the people involved I can see no reason why a household cannot exist irrespective of the physical location in which those people are living together and irrespective of the time they spend in a particular location.
[28] Respondent’s Statement of Facts and Contentions para. 62.
Whilst they were holidaying in Bali, Mr Norman and Ms Kumalawati lived together, albeit in a hotel room. They jointly cared for A. I am satisfied that they were staying together as a family. Although the arrangements did not necessarily involve housework, it is my view that, taking into account the totality of their relationship, this does not prevent a finding that Mr Norman and Ms Kumalawati were in a de facto relationship.
The social aspects of the relationship
During the time that they were in Bali, Mr Norman and Ms Kumalawati visited friends together and enjoyed social activities as a family. They held themselves out as being a de facto couple. This was confirmed by the evidence of Mr Sugiharta and Ms Tobing, and the photographs taken at the time.
I note the provisions of subsection 4(3A) which limits the circumstances in which an opinion can be formed that persons are holding themselves out as being in a de facto relationship.[29] In accordance with this subsection the de facto relationship between Mr Norman and Ms Kumalawati cannot be held to exist during the two years prior to their meeting in Bali in August 2004 as they were living separately and apart on an indefinite basis during that time.
[29] Subsection 4(3A) provides:
(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
Sexual relationship
Whilst in Bali Mr Norman and Ms Kumalawati resumed their sexual relationship as they had done on all the previous occasions they were together.
The nature of their commitment to each other
I am satisfied that from the time they met in Bali in 2004 and Ms Kumalawati agreed to travel to Australia with A to live with Mr Norman, they were committed to each other and both considered that their relationship was likely to continue indefinitely. They planned to marry and held themselves out to family and friends as being in a de facto relationship with each other.
Mr Norman's actions before he travelled to Bali indicate that he was committed to a de facto relationship and ultimately marriage with Ms Kumalawati. He had arranged for accommodation for the family in Australia and had commenced packing Ms Kumalawati's belongings to move into a new home. However there remained the thought that he had to “sort out” the relationship when he and Ms Kumalawati met.I am satisfied that this had been done before he returned to Australia in August 2004.
Notwithstanding Mr Musu’s evidence that he regarded his marriage to Ms Kumalawati as stable and happy, other evidence shows that this was not the case. Whatever commitment Ms Kumalawati may have had to Mr Musu I am satisfied that by the time of her death she was committed to a de facto relationship with Mr Norman and intended to marry him when she was free to do so.
I have reached this conclusion taking into account that Ms Kumalawati told members of Mr Norman's family and their mutual friends that she intended coming to Australia to live with, and ultimately to marry, Mr Norman. Further, she had applied for Australian citizenship for A and applied, or at least intended to apply, for a visa so she could travel to Australia. In my view, it does not matter that there is no evidence that Ms Kumalawati applied for a permanent visa[30]. I have accepted Mr Norman's evidence as to their plans once Ms Kumalawati had arrived in Australia and was divorced from her husband.
[30] Respondent’s Statement of Facts and Contentions para.69; exhibit R1 p.185.
I have taken into account also that the photographs in evidence, taken in mid-August 2004 depict a couple who appear to be in a close personal relationship.
Considering the relationship as a whole
In accordance with subsection 4(3) I must have regard to all the circumstances of the relationship, including, but not limited to, the factors I have considered above. I must take into account factors which weigh both for and against Mr Norman and Ms Kumalawati being members of a couple at the time of Ms Kumalawati's death.
With respect to the factors listed in subsection 4(3), as stated by French J in Pelka v Secretary, Department of Family and Community Services, [31] the Tribunal
…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.
[31] Pelka v Secretary, Department of Family & Community Services [2006] FCA 735, [46].
In his judgment, French J quoted the following paragraph from the Lynam v Director-General of Social Security:[32]
‘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.’
[32] (1983) 52 ALR 128, 131.
Of course, one factor which weighs against their being members of a couple is Ms Kumalawati's marriage to Mr Musu and her having continued to reside with him until she travelled to Bali on the last occasion. Mr Musu said that the marriage was happy and that they lived together as husband and wife during the whole of that marriage. I do not accept this evidence.
Ms Kumalawati's actions were not consistent with Mr Musu’s description of their relationship. Although she was married to Mr Musu from March 1999, Ms Kumalawati maintained contact with Mr Norman apart from a period of about one month after she told him of her marriage. She also spent time with Mr Norman in Indonesia, Thailand, Singapore and Australia. On each occasion they resumed their sexual relationship. In addition, she accepted significant financial support from Mr Norman for five years.
Mr Musu’s evidence as to the circumstances in which he left Ms Kumalawati and A in Australia in 2001 was not convincing. He was vague as to the living arrangements which he says he believed were in place for his wife and young daughter. He was also vague as to Ms Kumalawati's plans to return from Bali in October 2004, which was apparently after her return air ticket was said to have expired. Mr Musu acknowledged that at times he became suspicious of Ms Kumalawati's relationship with a person known to him only as her cousin. Although Ms Kumalawati was prepared to tell Mr Norman of her marriage to Mr Musu, she kept secret from Mr Musu her relationship with Mr Norman and that he, not Mr Musu, was A’s father.
In my opinion, taking into account the totality of the evidence of their relationship, Mr Norman and Ms Kumalawati were in a de facto relationship at the time of Ms Kumalawati’s death. This was not a situation where Ms Kumalawati and Mr Norman were meeting for a short holiday in Indonesia. Plans had been made for Ms Kumalawati and A to move to Australia to live with Mr Norman. They were each committed to a life together and stayed together as a family. In my view, their time in Bali was a resumption of the relationship between them which existed in the six months they lived together in Sydney in 2001. I am satisfied that, for the purposes of the Act, it marked the commencement of a de facto relationship.
In reaching this conclusion, I have taken into account the whole history of their relationship. The time they spent in Bali in August 2004 must be seen in the context of their relationship over the previous six years and not simply as a short-term holiday relationship. At that time they were both engaged in the care of their daughter and both had made definite plans to continue to live together in a de facto relationship and to marry when Ms Kumalawati was free to do so. They had both taken action to obtain the necessary travel documents to enable Ms Kumalawati and A to enter Australia.
Although Mr Norman had returned to Australia two weeks prior to Ms Kumalawati's death, this was planned as a very short term and temporary separation. In those circumstances the provisions of subsection 4(3A), to which I have referred, do not apply.
I am satisfied that at the time of Ms Kumalawati's death, Mr Norman was a member of a couple with her on the basis that each of the following conditions was met:
·they had a relationship with each other;
·they were not legally married to each other;
·in my opinion the relationship between them was a de facto relationship;
·they were both over the age of consent;
·they were not within a prohibited relationship.
It follows from this finding that Mr Norman was Ms Kumalawati's partner and therefore a close family member when she died as a result of a terrorist act being the bombing of the Australian Embassy in Jakarta on 9 September 2004. As such he is a secondary victim of a terrorist act within the meaning of subsection 1061PAA(3) of the Social Security Act 1991 (Cth).
CONCLUSION
The decision under review, being the decision of the Social Security Appeals Tribunal made 4 April 2014 to reject Mr Norman's claim for an Australian Victim of Terrorism Overseas Payment, will be set aside.
The matter will be remitted for reconsideration in accordance with the direction that Mr Norman is a secondary victim of a declared terrorist act within the meaning of subsection 1061PAA(3) of the Social Security Act 1991 (Cth).
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ................................[sgd]........................................
Associate
Dated 20 February 2015
Date(s) of hearing 18-19 September 2014; 30 September 2014; 14 November 2014 Date final submissions received 14 November 2014 Applicant In person Solicitors for the Respondent H Schuster; Department of Human Services
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