KARAFOULIDIS And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

[2001] AATA 757

DECISION AND ORAL REASONS FOR DECISION [2001] AATA 757

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2001/87

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      TRIANDAFILLOS KARAFOULIDIS       
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Senior Member WJF Purcell         

Date27 August 2001

PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.      
  (Signed)
  W JF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - Age Pension - whether applicant is "member of a couple" - whether pension is payable at single rate – marriage-like relationship – "separated under same roof"
Social Security Act 1991 s.4

ORAL REASONS FOR DECISION

27 August 2001   Senior Member WJF Purcell            

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 18 October 2000, which affirmed the decision of an authorised review officer that the applicant is a member of a couple, and is not separated from his wife.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with an exhibit tendered by the applicant who appeared on his own behalf, and gave oral evidence with the assistance of an accredited interpreter in the Greek language, Mr Bougesis. He called his son, John Karafoulidis, as a witness. Ms Odgers represented the respondent (the Department).

3. The applicant, who will be 68 years of age on Thursday 30 August 2001, first applied for Age Pension in August 1998.  The report of a social worker dated 22 September 1998 reads, in part, as follows (T3):

   "Mr Karafoulidis applied for the Aged Pension on 28-8-98, as he turned 65 on 30-8-98.  Pension staff were unable to assess his claim as he was unable to provide income details for his wife Irene, claiming that she did not support him financially.  His Pension claim was rejected on 3-9-98 due to his inability or unwillingness to provide details of his wife's income.
   … Since his retirement, however, problems appear to have developed in that Mr Karafoulidis has lost his independence.  He admitted that his wife was paying for the food, but said that she refused to give him spending money for beer and cigarettes, saying that 'She doesn't trust me'.  He stated that he still had a little money saved and he had continued to contribute to bills, but that he needed his own income.
   …
   Mr Karafoulidis became extremely angry and frustrated as I explained the background to the Pension assessment process.  He appeared to believe that having paid taxes in Australia and being 65 a Pension was his legal right.  His belief is common to many people of his age, who have an expectation of receiving a Pension, and this belief causes frustration and anger when income or asset testing rules affect entitlement.
   …
   He asked if we would pay him if he lived in his garage, and I explained that we would use the same format to assess whether he was in fact separated from his wife.  He later expressed an intention of moving to his son's house in the next few days.
   …
   Mr Karafoulidis is in my opinion, and by his own admission, living in a married like relationship with his wife.  His basic needs appear to be being met, but he lacks independence and feels a loss of pride without an independent income or provision of 'spending money' by his wife.  His situation is a sad one because the law presumes a sharing of marital income, which is not the way all married couples choose to live their lives.  As a result he feels a great deal of frustration and anger and a sense of betrayal by the system, which he believes promised him a Pension.
   Mr Karafoulidis was offered options to pursue assessment of his Pension, which he refused. It is possible that he will leave the marital home, as he states he is being forced to do so in order to get an income.
   …"

4. The applicant left the matrimonial home soon after the interview, and was paid Age Pension at the single rate from 26 November 1998. On about 25 April 2000, he returned to live at the matrimonial home at 33 Lancaster Avenue, Fulham Gardens (Fulham).  On 6 June 2000 his Age Pension was reduced to the partnered rate, on the basis that he was a member of a couple.

5. On 27 July 2000, the applicant attended an interview in relation to his claim to be considered as "separated under the same roof".  The social worker reported, in part, as follows (T17):

   "BACKGOUND TO CURRENT CLAIM
   Mr Karafoulidis described an unhappy marriage for many years.  This, however appears to be a different assessment of the marriage to the one he described in 1998 when he was interviewed by a Social Worker at Torrensville.  At that time Mr Karafoulidis indicated that the only difficulty in the marriage was that he had no financial independence and his wife refused to provide him with money.  He states now that his behaviour (bad temper, gambling) contributed to the couple's difficulties.  Mr Karafoulidis was denied an Age Pension in 1998 and he soon after moved into accomodation [sic] owned by his wife's brother.  He lived there until recently when his brother-in-law advised that he needed to rent out the property.  Mr Karafoulidis then returned to the marital home, it would seem with the expectation that he would be entitled to an Age Pension.
   ISSUES FOR CONSIDERATION IN "SEPARATED UNDER SAME ROOF" CLAIM

• Mr Karafoulidis owns the home at Fulham Gardens jointly with his wife.  He does not intend to sell the marital home and has no intention of seeking a divorce, as he sees no reason to do so.

  …

• Question 5 of the "Assessment of Living Arrangements" form asked if Mr Karafoulidis saw his relationship as different from that of a married couple, to which he replied "no".  This was discussed at interview and Mr Karafoulidis repeated that he did see himself as married, even though he and his wife have little communication and inhabit separate areas of the house.

  SOCIAL WORK SUMMARY
  It is not clear for how long there have been difficulties in the relationship between Mr Karafoulidis and his wife, but it would appear that the decisions to leave the marital home and then to return to it 2 years later, have been based primarily on Mr Karafoulidis' financial situation.  He left originally because his own funds were depleted and his wife was not prepared to support him.  She was also not prepared for him to receive directly any share of their rental income.  Mr Karafoulidis moved back to the marital home when he was no longer able to use his brother-in-law's rental property.  He states that his wife is still no longer prepared to provide him with her money but has apparently now agreed to allow him a half share of the rental income.  It does seem that Mr Karafoulidis is taking this action as he believes that it will support his claim to be considered as "separated under the same roof".  Mr Karafoulidis considers his only options as to again move out of the home or to remain and pursue his review rights if the claim is rejected.  He does not consider a property settlement or divorce to be an option and previously indicated that he did not regard it as an option to sell other property to achieve independence.
  SOCIAL WORK ASSESSMENT
  It is not uncommon for the nature of a marriage to change over time and for the emotional components of the relationship to subside while living arrangements stay much the same because of habit or mutual convenience.  Mr Karafoulidis sees the relationship as having deteriorated and one of the consequences has been a lack of sharing of financial resources.  He still regards himself as married and has no plans to change that.  He chose to return to the marital home after 2 years when his accomodation [sic] was no longer available to him; he did not seek accomodation [sic] elsewhere.  His decision to stay or leave was previously and would again seem to be based on financial factors, and there is no indication that he would necessarily leave if he had his own source of income.  Mr Karafoulidis has now negotiated with his wife to access half of their rental income and presents this as an indicator that they are leading separate lives.  However it could also be seen as an appropriate means by which a married couple can arrange their finances so that each can have financial independence within the marriage.
  Despite the unhappy nature of this relationship, the fact that they now have little to do with each other and occupy separate areas of the house it does not appear that this couple's marriage has ended and that they are in fact "separated under the same roof"."

1. Section 4 of the Social Security Act 1991 (the Act), provides that a person is partnered if the person is a member of a couple. Section 4, as far as is relevant for the purposes of this review, provides:

   "4  Family relationships definitions – couples
   …
   Member of a couple - general

   4(2)Subject to subsection (3), 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, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

   (b)       all of the following conditions are met:

   (i)the person has a relationship 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 relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like 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 for the purposes of section 23B of the Marriage Act 1961.

   Member of a couple - criteria for forming opinion about relationship

   4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2) (a) or subparagraph (2) (b) (iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

   (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."

2. The applicant has been married now for 38 years.  He and his wife have three adult children, two of whom are married and live in their own accommodation.  The third child, John, is a 34-year-old bank officer who lives with his parents at Fulham.

3. The applicant gave evidence that the marriage has not been a happy one; that they have not been close; that his wife has been cold towards him since the birth of their first child.  A contributing factor, he says, was that he attended Greek clubs (the Club) every day after work, whilst she worked throughout the marriage, and her mother looked after the children.

4. The applicant said that his wife would be crying when he returned home from the Club at 1 o'clock on a Saturday morning, and complaining that he was never there for her or the children.  On his evidence he continued to attend the Club every day to drink and smoke heavily, and to gamble up to $200 per week, until he left work at Perry Engineering in 1996.  He was paid 80 percent of his salary for the next two years by WorkCover.  He said in evidence that he then spent most of his time at the Club, drank more, smoked more, as there was no one at home and nothing to do.

5. The applicant said in evidence that after his daughter's marriage in about 1996/97 he moved into her bedroom as his wife had complained for many years of him coming home late from the Club with his clothing smelling of alcohol and cigarette smoke.  On those occasions he would often sleep in the lounge.

6. On the applicant's evidence, when he received severance pay in 1996, he put some funds towards paying off Fulham, and travelled to Greece for a 6 to 8 weeks holiday.  When he returned his lifestyle did not change.  His wife paid all the bills from her salary at the factory and the rent of the Kilkenny property, and the applicant continued to receive the 80 percent of income until he applied for Age Pension in August 2000.  He says that his wife refused to send in the forms setting out details of her income and so he had to leave Fulham so that he could be paid the Age Pension.  He stayed at his brother-in-law's home rent-free until he required it for rental purposes in April 2000. 

7. The applicant said in evidence that when he returned to Fulham in April-May 2000, he was feeling very unwell with gastritis and ulcers and gradually then reduced his smoking and alcohol intake.  He says that he is feeling much better since he stopped smoking and drinking completely in January 2001.  Since his return, his wife has agreed to share the Kilkenny rental income on a fortnightly basis.  He says that he has no intention to divorce his wife - that is not necessary - unless he cannot keep himself, and if the Tribunal finds against him, he questions how he is to support himself, to sustain himself, in the future.  He may be forced to leave the home again.

8. The applicant's son, John, gave evidence to the effect that his parents lead separate lives in a rather large home, he on one side, she on the other.  As part of the close-knit Greek community they would be shunned, as divorce is not acceptable.  The parents want to be seen by the Greek community as a married couple.  They attend family functions together, such as weddings and name days.  They have never been in the habit of attending other outside social functions.  If friends visit, they entertain them together.  They are civilised in the treatment of each other, but totally independent in their other activities.

9. In accordance with the legislation, a person is a member of a couple if the person is legally married and is not living separately and apart from the other person on a permanent or indefinite basis. I have taken into account the criteria set out in section 4(3) of the Act for forming an opinion about the relationship. I have examined the whole of the evidence regarding the relationship and taken into account the parties' submissions. I am not satisfied on the evidence that the applicant is living separate and apart from his wife.

10. In my view, when the relationship is considered in its entirety, it continues to be a marriage-like relationship.  They own Fulham and the rental property and vacant land at Kilkenny as joint tenants, and they have an arrangement now to share the rental proceeds.  The applicant has his own bedroom, but this is a situation which has prevailed since his daughter's wedding in 1996/97.  It is clear on the evidence that the applicant has lead his own social life since the beginning of the marriage, attending the Club every day, taking little part in the upbringing of the children, and no part in household chores or maintenance and repairs in the home.  He has attended to a vegetable garden, but said that he is "lazy".

11. On the evidence, the applicant's marriage may not be a happy or contented arrangement, but he agreed with the statements recorded by the social worker in her report of 27 July 2000, that he did not see his relationship as different from that of a married couple.  It is apparent that the applicant felt that he lost his financial independence once his workers' compensation payments ceased; and he cannot accept the policy of the Social Security legislation that the income and assets of his wife are relevant to the level of pension which will be payable to him as an aged pensioner.

12. On the whole of the evidence, the marital relationship appears unchanged over the years;  the applicant's dissatisfaction is with the legislation.  He says that his wife does not "trust" him because of his past gambling habit; and with no independent income of his own, he has been required to renegotiate the division of financial resources - a not uncommon situation when one partner is 65 years of age and retired, and the other is some years younger and in the workforce.

13. In my view, the applicant's relationship with his wife may well have changed and/or deteriorated with his fluctuating health and financial resources, but I do not consider that the applicant is living separately and apart from his wife on a permanent basis.

14. I am satisfied, on the whole of the evidence, that the applicant is a member of a couple, and is not separated from his wife.

15. For these reasons, the Tribunal affirms the decision under review.

    I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing  27 August 2001
    Date of Decision  27 August 2001
    Counsel for the Applicant        In person (with Greek interpreter)
    Solicitor for the Applicant         -
    Counsel for the Respondent    Ms L. Odgers
    Solicitor for the Respondent    Centrelink