Kettlewell and Secretary, Department of Social Services (Social services second review)

Kettlewell and Secretary, Department of Social Services (Social services second review) [2018] AATA 8 (11 January 2018)
Division:GENERAL DIVISION
File Number: 2016/6747
Re:Leslie Kettlewell
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member

Date:11 January 2018
Place:Perth

The decision under review is affirmed.
.......[sgd]........................................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – rate of age pension – whether a member of a couple – whether living separately and apart on a permanent and indefinite basis - whether separated under one roof - financial aspects of the relationship – nature of the household – social aspects of the relationship – sexual relationship between the people – nature of the people’s commitment to each other – evidence supports that applicant a member of a couple – evidence supports applicant not separated under one roof – no special reason not to treat as member of a couple - decision under review affirmed
LEGISLATION
Social Security Act 1991 – s 4 – s 4(2)(a) – s 4(3) – s 24(1) – s 55 – s 1064
CASES
Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792
Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470
In the Marriage of Pavey (1976) 10 ALR 259
In the Marriage of Todd (No 2) (1976) 25 FLR 260
Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135
Re Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050
Staunton-Smith and Secretary, Department of Social Security (1991) 32 FCR 164
SECONDARY MATERIALS
The Guide to Social Security Law – Part 2.2.5.30 – Part 2.2.5.50
REASONS FOR DECISION
L M Gallagher, Member
11 January 2018
INTRODUCTION

Mr Kettlewell and Mrs Sonya Kettlewell are married and live at the same address.
On 14 December 2009, Mr Kettlewell was granted the Disability Support Pension (‘DSP’) (R2, Attachment A).
On 12 August 2010, a customer services officer of the Department of Social Services (‘the Department’) recorded being of the opinion that Mr Kettlewell was, at that time, separated from Mrs Kettlewell (R2, Attachment B). The customer services officer also noted that Mrs Kettlewell’s earnings were precluding him (since 22 February 2010, refer to R2, Attachment A) from receiving his DSP payments (R2, Attachment B).
On 13 May 2011, Mr Kettlewell transferred from the DSP to the age pension (R2, Attachment A) and has been in receipt of age pension since this time.
On 18 April 2016, the Department requested Mr Kettlewell and Mrs Kettlewell each complete and return a “Relationship details – Separated under one roof” form, which they respectively completed, signed and returned to the Department (T6, T17).
On 9 June 2016, a CSO of the Department reviewed Mr Kettlewell’s entitlement to the age pension (T14, page 139). The CSO determined that Mr Kettlewell and Mrs Kettlewell be treated as a member of a couple (T7). In recording the basis of the determination, the CSO relevantly noted that (T14, pages 139–140):
It is a long standing provision of the social security system that members of a couple should rely on one another for support before calling on the resources of the general community. There is insufficient evidence to support that steps are being taken to permanently sever the relationship or that any steps are being taken to live separate and apart from each other on a permanent or indefinite basis. It is my determination, based on the information provided, that Mrs Kettlewell and Mr Kettlewell are living as members of a couple. This is supported by the facts that Mrs Kettlewell and Mr Kettlewell continue to live in a manner whereby they gain the benefits as those who live as members of a couple, will not be taking steps to move forward with their lives as single people while reconciliation remains a possibility and have not sufficiently demonstrated that steps are being taken to permanently sever the relationship. I direct that Mrs Kettlewell and Mr Kettlewell be assessed as Partnered for DHS purposes at this time.
…
Mr Kettlewell stated that yes, there is a possibility of reconciliation when Mrs Kettlewell returns from overseas as she has now retired. Mr Kettlewell stated that he claimed to be suor due to financial pressures when he was on the disability pension as he was running out of money and found the DSP to be inadequate. I have advised Mr Kettlewell of my decision by telephone, Mr Kettlewell became distressed stating financial pressures that this decision will create, I offered Mr Kettlewell his appeal rights and stated that he will ‘change his bloody answer’ in relation the [sic] possibly [sic] reconciliation question.
[emphasis added]
On 9 June 2016, Mr Kettlewell contacted the Department to request a review of the decision of the same date (T14, page 141). The record of contact states, in part:
He and OP may reconcile now that she has retired – customer has stated that he will “change his bloody answer” in this regard … customer states that he claimed to be single as he was running out of money whilst on the DSP.
On 22 July 2016, an Authorised Review Officer (‘ARO’) of the Department reviewed and affirmed the decision of 9 June 2016 (T9) on the basis that it agreed with the original decision maker that Mr Kettlewell is a member of a couple with Mrs Kettlewell as defined in section 4 of the Social Security Act 1991 (Cth) (‘the Act’), and not living ‘separated under one roof,’ for social security purposes.
On 19 August 2016, Mr Kettlewell applied to the Administrative Appeals Tribunal (‘Tribunal’) for a first review of the ARO decision dated 22 July 2016 (T2). On 25 October 2016, the Tribunal’s Social Services and Child Support Division (‘AAT1’) affirmed the ARO decision (T2). The AAT1 was not satisfied on the evidence before it that the marriage between Mr Kettlewell and Mrs Kettlewell had completely broken down when at the relevant time, being when the Department made its original decision on 9 June 2016 (T2, page 25). The AAT1 also considered the discussion initiated by Mr Kettlewell about a caravan trip with Mrs Kettlewell with a view to testing out reconciliation was consistent with a relationship where the bond of marriage had not been completely severed (T2, page 25).
On 19 December 2016, Mr Kettlewell applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 25 October 2016, claiming that the AAT1 decision was wrong because (T1, page 3):
The decision maker incorrectly interpreted comment [sic] made by me about the use of a caravan (via phone call). The comment was made in respect of my belief that Sonya had owned the caravan for ten years and not got worthwhile use out of it. It was merely a suggestion that the asset be used before proposed sale of it by Sonya. There was no intention to persue [sic] reconciliation as described. Reconcilliation [sic] has not been pursued by either person in the relationship.
RELEVANT LEGISLATION AND PRINCIPLES
The statutory provisions relevant to the present matter are contained in the Act. The Guide to Social Security Law (‘the Guide’) provides assistance to those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines will usually do so unless there are cogent reasons in in a particular case for not doing so (refer to Re Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179).
A person’s age pension rate is calculated using Pension Rate Calculator A at the end of section 1064 of the Act (section 55 of the Act). This calculation is relevantly affected by whether a person is or is not a “member of a couple” or is “partnered.”
Subsection 4(2)(a) of the Act provides that a person is a “member of a couple” if:
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.
Subsection 4(3) of the Act sets out the criteria to be considered when forming an opinion about the relationship between two people for the purposes of subsection 4(2)(a) of the Act. Subsection 4(3) of the Act provides:
(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a)…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, 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.
[emphasis added]
Subsection 24(1) provides for the making of a determination that a person not be treated as a member of couple for the purposes of the Act, where:
(a)a person is legally married to another person; and
(b)the person is not living separately and apart from the other person on a permanent and indefinite basis; and
(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
The Guide provides guidance on determining separation under one roof (Part 2.2.5.30) and the discretion to treat a person as not being a member of a couple for a special reason, which should be exercised only where a full consideration of all the circumstances relevant to the individual’s case would make it unjust or unreasonable not to do so (Part 2.2.5.50).
In determining whether two persons are living separately and apart on a permanent and indefinite basis, the task is a different one to the consideration of whether two unmarried people are living together on a bona fide domestic basis. The tribunal is to have regard to all the material facts and the totality of the evidence in each case, treating the matters listed in subsection 4(3) of the Act only as indicators. No tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed to slavishly comment on each item in the list (Staunton-Smith and Secretary, Department of Social Security (1991) 32 FCR 164).
The Staunton-Smith decision referred to at paragraph 17 above also referred to the following comments on Watson J in In the Marriage of Todd (No 2) (1976) 25 FLR 260 (at 262-263), relevantly:
In my view, “separation” means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in private and public relationships.
The test for whether two persons are a member of couple is an objective one, having regard to the legislation and the facts of the particular case. In all the circumstances of a particular case, a person may satisfy few of the criteria but still be considered to be a member of a couple (Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050).
In In the Marriage of Pavey (1976) 10 ALR 259, the Full Family Court considered matters regarding separation under one roof. The Court said (at page 265):
In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation…The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation.
ISSUE FOR DETERMINATION
The issue for review is whether Mr Kettlewell’s age pension should be assessed at the single rate or the partnered rate. This requires consideration of whether, on 9 June 2016:
(a)Mr Kettlewell and Mrs Kettlewell were a member of a couple and not living separately and apart on a permanent or indefinite basis; and if not,
(b)whether there is, nonetheless, a special reason in their particular case not to treat them as members of a couple.
EVIDENCE
The matter was heard in Perth on 27 November 2017. Mr Kettlewell appeared in person and was self-represented. The Secretary was represented by Mr Christopher Bishop from Mills Oakley Lawyers.
The Tribunal received the following evidence:
·Applicant’s submission dated 3 February 2017 and filed on 8 February 2017 (A1);
·Applicant’s correspondence and submissions filed on 29 May 2017 (A2);
·Applicant’s further evidence filed on 31 October 2017 (A3);
·a 187 page set of T-Documents (T1 – T20) (R1); and
·Secretary’s Statement of Facts, Issues and Contentions dated and filed on 21 April 2017 (R2).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
Mr Kettlewell gave the following evidence at hearing, including during cross-examination by Mr Bishop:
(a)Mrs Kettlewell applied for the age pension upon her retirement from work in 2016. It was then that Centrelink asked him to lodge a fresh ‘separated under one roof’ form.
(b)He moved into his own bedroom on 23 June 2010 (refer to A3, page 2).
(c)He and Mrs Kettlewell had been “virtually separated” for years, with “different bank accounts and different everything all back then.”
(d)He disagreed with Mr Bishop’s proposition that it was not uncommon for married people to sleep in different rooms.
(e)He believes that “probably, yes, things change,” in response to Mr Bishop’s proposition that it was not uncommon for a relationship to change from what it was originally in the sense that he would not expect his relationship (with Mrs Kettlewell) at the beginning to be the same as what it is now.
(f)His relationship with Mrs Kettlewell was “bad” for many years. He had known Mrs Kettlewell for only a few weeks before they were married.
(g)Mr Kettlewell worked twelve hours per day, seven days a week for many years. He came from a broken family and wanted to keep his family together.
(h)Mr Kettlewell said that Mrs Kettlewell had also worked full time, but “he was paying for everything.”
(i)When he was made redundant from work in 2002, he “wondered what it was all for” and realised that he “should have got out of his marriage a long time ago.” However, because of the “era he grew up in,” they (he and Mrs Kettlewell) stayed together and “stuck with it.”
(j)He accepts that he had the ability, if he wished, to separate from Mrs Kettlewell and get a divorce. However, he has not sought to obtain a divorce because he “paid for the house, the block [of land] and the kids’ education[s].”
(k)He said that when they (Mr Kettlewell and Mrs Kettlewell) later bought a bigger house, he “paid for all of that too” with the money he “got from the redundancy.” Mr Kettlewell said that that money (from the redundancy) was “being whittled away” on electric roller doors on the garages of the bigger house and on new bathrooms and solar panels.
(l)Mrs Kettlewell is a religious person, who attends church four to five times per week. Mr Kettlewell said that when their children were younger, Mrs Kettlewell would take them to church and to church conventions. Mr Kettlewell said that “none [of their children] go to church anymore.”
(m)Mr Kettlewell said that a few years ago, Mrs Kettlewell went to Europe for a holiday, while he remained in Perth where he worked part-time after being made redundant. Mr Kettlewell added that last year, Mrs Kettlewell holidayed in the United States and Canada for three months, after receiving a “work payout.” Mr Kettlewell said that he did not join Mrs Kettlewell on that trip either.
(n)Mr Kettlewell said he then “got some injuries,” had artery surgery and knee surgery and then “got DSP.”
(o)As to the reason why, if his relationship with Mrs Kettlewell had broken down, he did not obtain a divorce and attempt to come to an arrangement for a property settlement, he said that when he went on the DSP, Mrs Kettlewell was still working, however she “was not giving him any money” and he had to spend his own money. Mr Kettlewell said that he “went for separated under one roof” because if he divorced her, she would have “taken half the house” and he would be “homeless.”
Mr Bishop then put it to Mr Kettlewell that that was inaccurate (referring to his evidence in subparagraph 25(o) above) given that the sale of his home would leave him with a sum of money and coupled with his age pension, would make renting a property a viable option, Mr Kettlewell said:
(a)That he couldn’t afford to divorce Mrs Kettlewell was “part of it” [part of the reason why he had not done so]. The “other part of it” was that when they had talked about it [divorce] years prior, “she wanted half the house” and he did not want to sell the house because he wanted to “hand the property to the kids.”
(b)He “can’t and won’t” answer the question of whether the decision not to divorce Mrs Kettlewell was a financial choice to maintain the benefits of being married, because “there are a myriad things involved.”

Mr Kettlewell confirmed that his property ownership remains as being a joint proprietor with Mrs Kettlewell, and that on his death, his share in the property will transfer to Mrs Kettlewell and that he was happy with this being the arrangement.
As to household expenses, Mr Kettlewell said:
(a)They are shared between himself and Mrs Kettlewell and that the house (maintenance, rates, sewerage) runs on a “50/50” basis.
(b)As to how that is “worked out,” Mr Kettlewell said that he “does not use cards,” and gives Mrs Kettlewell cash (to meet half of the expense in question) and that he “does not know what she does with it [the cash]” once he gives it to her (that is, he does not know whether, for instance she uses the cash to pay for half of the expense or whether she deposits the cash into her bank account and pays the entire expense another way).
(c)The Tribunal would not be assisted by Mr Kettlewell’s bank records regarding how household expenses were and are shared between himself and Mrs Kettlewell as all of his transfers to Mrs Kettlewell were made by cash
As to food shopping and sharing of meals, Mr Kettlewell said:
(a)He buys his own food and does his own cooking.
(b)In response to Mr Bishop then noting that this (Mr Kettlewell’s evidence at subparagraph 29(a) above) was not what he told the Tribunal in 2016,[1] Mr Kettlewell said that he “rewrote things as they are and as Centrelink want things” and that he and Mrs Kettlewell have not shared any meals since the first review (by the Tribunal).
[1] Mr Kettlewell’s evidence before the AAT1 on 25 October 2016 was that he cooks the evening meal and tends to the shopping (T2, page 23, paragraph 15).
Considering the period of time between the review by the AAT1 and now:
(a)With regard to Mr Kettlewell’s conversation with the Department on 9 June 2016 (T14, page 141, extracted at paragraph 7 above), Mr Kettlewell said he accepts that he said he would change his answer.
(b)When Mr Bishop put to Mr Kettlewell an extract from the ARO’s notes of 22 July 2016 (T9, page 112) as follows:
CUS [customer] also said that he knows the whole decision is based on him indicating that he and SK [Sonya Kettlewell] have talked about a possible trip around Australia in the caravan after SK comes back from overseas to see if they can reconcile their relationship. CUS said if he had not ticked the box about not being sure whether they might reconcile then we wouldn’t be having this discussion.
Mr Kettlewell said this was just a short conversation and that he had been honest in answering the question put to him.
(c)When Mr Bishop put to Mr Kettlewell the following extract from the AAT1 decision (T2, page 23, paragraph 17):
17. Mr Kettlewell said that until recently they had an evening meal together. However, he said that they had changed this arrangement recently to comply with Centrelink’s requirements.
Mr Kettlewell said that “that’s part of it.”
Mr Bishop put it to Mr Kettlewell that it appeared that he was changing his answers to suit legislative requirements rather than to reflect the accuracy of the situation and that Mr Kettlewell was more than willing to change his answer in order to obtain a higher rate of payment. On that background, Mr Bishop asked Mr Kettlewell numerous times to answer “yes” or “no” to the question of whether there was in fact no independent evidence of any actual changes to the circumstances depicted in his most recent answers regarding his day to day arrangements with Mrs Kettlewell, rather the evidence was limited to his subjective answers. After some resistance to answer the question at all, Mr Kettlewell answered “yes.”
Mr Bishop directed Mr Kettlewell to the following extracts from his correspondence and submissions filed on 29 May 2017 (A2):
03/05/2017 Rowena Hodgson rang to let me know that the new “S.U.O.R Relationship Details (Granted in the 1^st A.A.T Review) sent to AAT last year with many changes to suit Centrelink and now present in “T” documents for second A.A.T Review should have been sent via Centrelink – will not be included!
…
A.A.T Review No.1 25/10/2016 via telephone…I asked to be able to complete another S.U.O.R questionnaire to address Centrelink’s expectation and changes made to suit.
[emphasis added]
In the context of the matters put at paragraph 32 above, in answer to the question of whether, since the time of the original decision made by the Department regarding his 9 June 2016 application, Mr Kettlewell has made statements that he will change his answers in order to comply with Centrelink requirements to enable him to obtain a higher rate of age pension, when in fact there was no independent evidence to support that any of those change had actually been made, Mr Kettlewell said it “was not just his answers, the changes are made.”
When asked if his evidence was self-serving, Mr Kettlewell said “if that’s the way they want it, that’s the way they are going to get it” and “it’s telling it what it is.”
As to whether Mr Kettlewell agreed with Mr Bishop’s proposition that there was no actual independent evidence to support the purported recent changes in Mr Kettlewell’s relationship with Mrs Kettlewell, Mr Kettlewell declined to give a “yes” or “no” answer and said that he was unable to do so.
When asked by Mr Bishop as to why he had not provided any statements from family or friends regarding the nature of his relationship with Mrs Kettlewell or any bank account records to demonstrate how their household operates, to corroborate his oral evidence that he and Mrs Kettlewell are irrevocably separated, Mr Kettlewell declined to answer and asked in return “why should I have to?”
As to other arrangements between himself and Mrs Kettlewell as at June 2016, Mr Kettlewell said:
(a)He does the shopping (consistent with his response on his relationship details form of May 2016, T6, page 93, question 60).
(b)That “Sonya does most (of the household tasks) with trade-off for my shopping and cooking,” “Sonya does washing and hanging clothes out. I may bring clothes in at times” and “I tend vege [sic] garden. Sonya tends rose/flower gardens” (being Mr Kettlewell’s response on his relationship details form of May 2016, T6, page 93, question 61) is “pretty reflective” of what goes on in a married relationship.
When asked if he would take Mrs Kettlewell to a doctor is she was sick, Mr Kettlewell answered “yes.”
When asked if Mr Kettlewell would get medication for Mrs Kettlewell from the chemist if he was already going to the chemist for himself, Mr Kettlewell said that Mr Bishop was “splitting hairs” and that he found it “disgusting.”
Mr Kettlewell said he still attends family birthdays and Christmas with Mrs Kettlewell and while “the women prepare the food” and Christmas, he might contribute by “bringing a ham” for example, and that what he brought would depend on what was needed. Mr Kettlewell added that these get togethers were “a family thing, with the kids and grandkids” and that “he is not part of a couple.”
Mr Kettlewell said that he has not been in a sexual relationship with Mrs Kettlewell for “many many years” and that he “couldn’t be bothered” and “wasn’t interested.”
As to whether either Mr Kettlewell was in a position to enter into a new relationship if he wished, Mr Kettlewell said “if he wanted to, he could” and “if she wanted to, she could” and that there would be no difficulty with this brought by either of them because even though they are not divorced, there is “no relationship.”
Regarding the accuracy of the reasons given by Mr Kettlewell for his present application before this Tribunal (refer to T2, page 3, “Section 3 Reasons for Application” extracted at paragraph 10 above), Mr Kettlewell indicated that on the whole these reasons were accurate.
Mr Bishop then took Mr Kettlewell to the following passage from his written submissions (A2):
I wish to state facts and realities of “the caravan.” Before going to the USA for three months and before I filled in the relationship details sent to Centrelink dated 02/05/2016, Sonya mentioned she was “going to sell the caravan when she got back.” I replied “what about going on a trip before you sell it?” Sonya added “we’ll talk about that when I get back.” That conversation finished there and wasn’t continued.
On the background of paragraph 44 above, Mr Kettlewell said that his answer of “not sure” answer to question 13 on the relationship details form dated May 2016 “do you think that there is any possibility that you and the other person will get back together again” (T6, page 87) should have been “no.” Mr Kettlewell said that this was because the only conversation had between himself and Mrs Kettlewell was as he recorded in his written submissions (A2, page 4, referred to at paragraph 44 above) and “that is the extent of it.”
As to why he thought (given Mrs Kettlewell was unavailable for cross-examination) Mrs Kettlewell had given the same answer of “not sure” to question 13 on her relationship details form, also dated May 2016, “do you think that there is any possibility that you and the other person will get back together again” (T17, page 155), when the answer was really “no,” Mr Kettlewell said it was because of the conversation that they had had about the caravan (as extracted at paragraph 44 above) and that there had been no other conversation about reconciliation.
When asked by Mr Bishop as to whether he had said to a CSO of the Department, as recorded on 9 June 2016 (T14, page 140, extracted at paragraph 6 above) that “yes, there is a possibility of reconciliation when Mrs Kettlewell returns from overseas as she is now retired,” Mr Kettlewell said that he was unable to answer.
When asked by Mr Bishop as to whether the following statement recorded by the same CSO of the Department, on 9 June 2016 (T14, page 143) was accurate:
“Leslie explained that now Mrs Kettlewell has retired they had discussed going on a trip around Australia in the caravan (which is owned by Mrs Kettlewell) and seeing if they are able to reconcile their relationship. Leslie stated that Mrs Kettlewell is currently travelling overseas until August 2016 and [sic] decision will not be made until she returns. Leslie feels that he should be considered as partnered until they have made this decision.”
Mr Kettlewell said that “an answer to the question is not going to happen.”
Finally, Mr Bishop directed the Tribunal to Mr Kettlewell’s evidence before the AAT1 that “Mr Kettlewell explained that in about March 2016, prior to Mrs Kettlewell’s trip to the United States, he suggested he and Mrs Kettlewell might use her caravan to tour Australia and see whether their relationship could be reconciled” (T2, page 24, paragraph 24). In doing so, Mr Bishop reiterated to the Tribunal the evidence at paragraphs 45 and 46 above. Mr Kettlewell responded by saying this this evidence given before the AAT1 was nothing more than a reference to selling [the caravan] when Mrs Kettlewell returned from her trip and that no further conversations regarding reconciliation were had between them.
CONSIDERATION
The issue before the Tribunal whether, as at 9 June 2016, Mr Kettlewell’s age pension should be assessed at the single rate or the partnered rate, which requires consideration of whether:
(a)Mr Kettlewell and Mrs Kettlewell were a member of a couple and not living separately and apart on a permanent or indefinite basis; and if not,
(b)there is, nonetheless, a special reason in their particular case not to treat them as members of a couple.
Whether Mr Kettlewell and Mrs Kettlewell were a member of a couple
In considering the matters at paragraph 50 above, the Tribunal has in turn considered each criterion pursuant to subsection 4(3) of the Act with guidance from related provisions, extracts from the Guide and the authorities set out at paragraphs 11 to 20 above).
The financial aspects of the relationship
With respect to the financial aspects of his relationship with Mrs Kettlewell (subsection 4(3)(a) of the Act), the available evidence is that:
(a)Mr Kettlewell and Mrs Kettlewell share the household and utility expenses (T6, page 92 and T17, page 160). Mr Kettlewell provides Mrs Kettlewell with cash in the amount of 50% of the particular expense and she attends to payment of the entire expense, although there is no documented evidence of this (refer to paragraph 28 above).
(b)Mr Kettlewell and Mrs Kettlewell separately manage their own bank accounts and maintain their own motor vehicles (T6, pages 91 and 94; T17 pages 159 and 162 and refer to subparagraph 25(c) above).
(c)Mr Kettlewell does not intend to sell the home he jointly owns with Mrs Kettlewell because doing so would leave him in a situation of having insufficient funds to purchase separate accommodation and they would no longer be able to leave the property to their children (T1, page 14; T6, page 88; T2, page 17, paragraph 12 T17, page 156 and refer to paragraph 27 above).
(d)Mr Kettlewell and Mrs Kettlewell are each other’s nominated beneficiary in their respective wills (T6, page 95 and refer to paragraph 27 above).
(e)Mr Kettlewell and Mrs Kettlewell both indicated on their relationship details forms in May 2016, prior to the AAT1 decision, that Mr Kettlewell did the shopping for both of them (T6, page 93 and T17, page 161), however Mr Kettlewell stated that this had changed by the time he had applied to this Tribunal, by which time he bought his own food (and does his own cooking) (refer to subparagraphs 29(a) and 37(a) above).
(f)Mr Kettlewell had made those changes in how they shared the house (paying the expenses and doing his own cooking) as he now understood what Centrelink required of him (T2, page 23, paragraph 11 and refer to sub-paragraph 29(b) above).
The Tribunal, in considering subsection 4(3)(a) of the Act, also notes the question of whether the decision not to divorce Mrs Kettlewell was financial to maintain the benefits of being married, i.e. the pooling of financial resources, however Mr Kettlewell refused to answer the question (refer to paragraph 26(a) above).
The Tribunal understands Mr Kettlewell’s position regarding the financial aspects of his relationship with Mrs Kettlewell to be that these aspects are consistent with their living separately and apart on a permanent and indefinite basis and that this had been the case for the some time.
The Secretary takes a different view to that of Mr Kettlewell set out at paragraph 53 above. Specifically, at paragraph 32 of its Statement of Facts, Issues and Contentions dated 21 April 2017 (R3), the Secretary contends:
The Secretary concedes that the maintenance by the applicant and Ms [sic] Kettlewell of separate bank accounts and motor vehicles is consistent with some degree of separation. However, they nonetheless pool their resources by the sharing of household expenses. It is significant that they have joint ownership of their home. Since 23 June 2010, they have not pursued a property settlement or sought to dissolve the joint tenancy of their home. They report that each is nominated as a beneficiary of the other in their wills. The totality of the financial aspects of their relationship is not consistent with their living separately and apart from each other on a permanent or indefinite basis.
In setting the context for its contention set out at paragraph 54 above, the Secretary relies upon the following authorities:
(a)Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at [52], where French J considered that pooling resources “plainly involves something more than financial cooperation or separate contributions to different elements of household expenditure.”
(b)Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470 at [46], where Senior Member Isenberg remarked that “[i]t is highly relevant in considering the nature of a relationship that the largest asset of the parties – the family home – was a property held as joint tenants. While ever they were joint tenants of that property, had either unexpectedly passed away, the survivor would have been the sole owner of that property. I acknowledge that neither Mr nor Mrs Hartley may have been able to afford to buy the other’s share of the family home, but the joint tenancy could have been dissolved.”
(c)Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135 at [33], where Senior Member Toohey noted that “[t]he fact that members of a couple maintain financial independence does not mean they do not gain some benefit of pooling of resources, because sharing rent and household expenses is a form of pooling of resources.”
Having considered the available evidence, the Tribunal finds that while aspects of Mr Kettlewell’s financial relationship with Mrs Kettlewell indicates that as at 9 June 2016, they were separated (for example, separate bank account and separate motor vehicles) other aspects of Mr and Mrs Kettlewell’s financial relationship indicates that they are members of a couple (for example, their joint property ownership, their will beneficiaries, pooling of financial resources and sharing of household expenses). In making this finding, the Tribunal also notes Mr Kettlewell’s evidence to the AAT1 that now he understood what Centrelink required of him and Mrs Kettlewell they were making changes in how they shared their house, including not having a telephone landline (T2, page 23, paragraph 11 referred to at sub-paragraph 52(f) above).
The nature of the household
In relation to the nature of the household, Mr Kettlewell contends it is consistent with himself and Mrs Kettlewell living separately and apart on a permanent and indefinite basis. The Secretary takes the contrary view.
In considering the parties’ respective positions in relation to the nature of Mr and Mrs Kettlewell’s household (subsection 4(3)(b) of the Act), the Tribunal has necessarily had regard to the following:
(a)In their forms completed in May 2016, Mr and Mrs Kettlewell indicated that:
(i)They each tend to different duties in the household. Namely, Mr Kettlewell usually cooks the evening meal, does the shopping and tends the vegetable garden while Mrs Kettlewell washes and hangs out the laundry each week and tends to the flower garden (T6, pages 89 and 93 and T17, pages 157 and 161). According to Mrs Kettlewell, the laundry is combined in order to save on electricity, water and wash powders (T17, page 161).
(ii)They separated on 23 June 2010 and intend to continue living together for “more than 6 months” with Mr Kettlewell not intending “to move out or sell” (T6, page 87 and T17, page 155).
(b)Mr Kettlewell considers the arrangement set out at subparagraph 58(a)(i) “pretty reflective” of what goes on in a married relationship (refer to paragraph 37 above).
(c)Mr Kettlewell has since indicated that the shopping, cooking and laundry were, by the time of applying to this Tribunal, performed separately and a housework roster had been established (T1, pages 8 and 12) although he and Mrs Kettlewell still share gardening duties and the cost of general maintenance.
(d)Mr Kettlewell has been in his own bedroom since 23 June 2010 (refer to sub-paragraph 25(b), T6 at page 89 and T17 at page 157). Kitchen and bathroom areas are shared.
(e)While their forms indicate they share the evening meal (only) (T6, page 89 and T17, page 157), Mr Kettlewell told the AAT1 that they had changed this arrangement to comply with Centrelink requirements (T2, page 17 at paragraph 17). Mr Kettlewell confirmed to this Tribunal that he and Mrs Kettlewell have not shared any meals since the review by the AAT1 (refer to subparagraphs 29(b) and 30(c) above).
In light of the evidence summarised at paragraph 59 above, the Tribunal finds that as at 9 June 2016, the nature of the Mr and Mr Kettlewell’s household, in particular the sharing of meals, household duties and common areas of the house and their intention for that to continue, indicates that they are members of a couple. The Tribunal, in making this finding, notes Mr Kettlewell’s concession on this point to some extent, given his evidence at paragraph 37 above (referred to at subparagraph 59(b) above).
The social aspects of the relationship

The evidence regarding the social aspects of Mr and Mrs Kettlewell’s relationship is as follows:
(a)In their forms of May 2016, Mr and Mrs Kettlewell each answered yes to the question, “Do relatives, friends or regular associates consider your relationship with the other person as similar to that of a married, registered or de facto couple?” (T6, page 90 and T17, page 158). To this answer Mr Kettlewell added, “[o]nly children and very few professionals [sic] know of relationship.” Mrs Kettlewell added “[I] am a very private person and don’t discuss any family circumstances with others.
(b)In his application for review to this Tribunal, Mr Kettlewell stated (T1, page 15):
In June 2010 children told of separation. Since then I have never invited any of my Albany friends or acquaintances to this house. Most probably don’t know where I live. I prefer to be private and visit close family. People can consider the relationship as they wish. 30/04/16 youngest daughter got married. Some guests from Perth stayed at house. Sonya’s niece [sic] husband and the children stayed downstairs for a few days. My best friend and his wife used my bedroom, I slept in the caravan. No questions were asked as most people respect each others [sic] privacy.
(c)Mrs Kettlewell continues to use her married name (T17, page 155).
(d)Mr Kettlewell and Mrs Kettlewell do not holiday together (T6, page 90, T17, page 158 and refer to subparagraph 25(m) above), although at one stage, around March 2016, Mr Kettlewell had suggested he and Mrs Kettlewell might use her caravan to tour Australia (T2, page 24, paragraph 24 and T14, page 143).
(e)Mr Kettlewell and Mrs Kettlewell share family occasions and celebrations such as weddings, birthdays and Christmas (T6, page 90, T17 page 158 and refer to paragraph 40 and subparagraph 60(b) above.
Having regard to the matters set out at subparagraph 4(3)(c) of the Act, the Tribunal finds that the evidence at paragraph 60 above leads to the conclusion that as at 9 June 2016, there were at least a number of social aspects of Mr Kettlewell and Mrs Kettlewell’s relationship that that was consistent with them being members of a couple, in particular their preference for others (other than their children) to consider them as married and the sharing of social events (if only in the context of extended family).
Any sexual relationship between the people
With regard to any sexual relationship between Mr Kettlewell and Mrs Kettlewell (subsection 4(3)(d) of the Act), the Tribunal has had regard to the following relevant evidence:
(a)Mr Kettlewell’s statement that they do not have a sexual relationship (T6, page 87) and that this had been the case for “many many years” (refer to subparagraph 62(a) above).
(b)Mrs Kettlewell’s indication that there is no intimacy between them (T17, page 155).
As such, the Tribunal finds that at the relevant time, the lack of any sexual relationship between Mr Kettlewell and Mrs Kettlewell is consistent with them not being members of a couple.
In its Statement of Facts, Issues and Contentions (R2, at paragraph 44) the Secretary has submitted that the ‘sexual relationship’ factor is not determinative of the issue, relying on Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792 at [34] and Hartley at [51]. At hearing, Mr Bishop submitted further for the Secretary that it was not uncommon that as people grow older and as relationships change, for there to be no sexual relationship between two people (who remain married).
The nature of the people’s commitment to each other
As to the nature of Mr Kettlewell and Mrs Kettlewell’s commitment to each other (subsection 4(3)(e) of the Act), the Tribunal notes the following:
(a)As to why she had not filed for divorce or applied for a property settlement, Mrs Kettlewell wrote on her form of May 2016 that her “Christian belief is marriage is sacred and no divorce (T17, page 156). On his form of May 2016, Mr Kettlewell answered this same question with the answer, “[a]ll property to be shared with children on my death. Selling would erase their inheritance” (T6, page 88).
(b)The caravan trip suggested by Mr Kettlewell to see if their relationship could be reconciled (T2, page 24, paragraphs 24 and 25 and T14, page 143). The Tribunal notes that while Mr Kettlewell does not dispute he made this suggestion as recorded, Mr Kettlewell maintains this was not at any time suggestive of the possibility of reconciliation in any respect (refer to subparagraph 30(b) and paragraphs 44 to 49 inclusive in this regard).
(c)Mr Kettlewell’s evidence at subparagraphs 25((f), 25(g), 25(i), 25(j) and 25(o) and subparagraph 26(a) and paragraphs 38, 39 and 42, to the effect that:
(i)Mr Kettlewell and Mrs Kettlewell have been married for many years with no intention to divorce even though there is no legal impediment to them doing so. Mr Kettlewell at one time, in approximately December 2016, formed an intention to initiate divorce proceedings however decided not to proceed (T1, page 7).
(ii)Despite their mutual unhappiness in their marriage at times, they remain married because of their respective personal and religious beliefs and for mutual financial reasons including their shared desire for their property to go to their children in due course.
(iii)Mr Kettlewell would assist Mrs Kettlewell to attend a doctor is she were sick, is required, however Mr Kettlewell wasn’t minded to indicate if he would assist Mrs Kettlewell, theoretically, in obtaining medication from a chemist if he were already going himself.
(iv)It was open to either of them to enter a new relationship if they wished, although they remain married and neither of them had exercised this option.
In considering this factor, the Tribunal has also had regard to Mr and Mrs Kettlewell’s answers on their May 2016 forms that:
(a)They provide a minimal amount of companionship and emotional support to each other (T1, page 9, T6, page 90 and T17, page 158). The Tribunal notes that at the time these answers were given, Mr Kettlewell’s evidence was that he and Mrs Kettlewell shared meals and family occasions.
(b)Their “separation” on 23 June 2010 has resulted in “less arguments, comitments [sic], able to do as i [sic] please. Happy in my bedroom” for Mr Kettlewell (T6, page 87) and “have my own area/space. Not being on edge, less stressed. Bedroom to myself, more relaxing” for Mrs Kettlewell (T17, page 155).
Relying on the decision of the Full Court of Federal Court in Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92 at [30], the Secretary contends at paragraph 52 of its Statement of Facts, Issues and Contentions (R2), Mr Kettlewell and Mrs Kettlewell have a continuing commitment to each other which is different from that which they have to any other person, inconsistent with their being deemed to live separately and apart on a permanent or indefinite basis.
Having regard to all of the available evidence, the Tribunal is minded to agree with the Secretary’s contention at paragraph 68 above. Although, in the Tribunal’s view, the suggestion of the caravan trip (which is not in dispute) indicated, at best, a possibility of reconciliation as at 9 June 2016, and Mr Kettlewell was reluctant to answer questions put to him by Mr Bishop (and indeed the Tribunal) regarding the possibility of reconciliation and the extent to which he would provide support to Mrs Kettlewell if she were ill or required medication, for example, it is not in dispute that their commitment to relationship will continue regardless.
Having regard to the totality of Mr Kettlewell and Mrs Kettlewell’s circumstances in forming an opinion about their relationship for the purposes of determining if they are a “member of a couple” (referring to subsections 4(2)(a) and 4(3) of the Act and related principles and authorities), in particular, the matters set out at paragraphs 51 to 69 above, the Tribunal finds that, objectively, as at 9 June 2016 Mr Kettlewell and Mrs Kettlewell were not living separately and apart on a permanent or indefinite basis.
In making the finding at paragraph 75 above, the Tribunal notes that it had no documentary evidence available to it in which to corroborate a number of Mr Kettlewell’s statements regarding his circumstances (refer to paragraphs 35 and 36 above).
The Tribunal also notes that at hearing, the Secretary made submissions regarding Mr Kettlewell’s admissions regarding having made a number of changes to his circumstances (and in turn, his answers in his later forms) following the AAT1 decision in order to meet legislative requirements and achieve a higher rate of pension (refer to subparagraph 30(a) and paragraphs 31 to 34 inclusive, above), of which he is now in receipt. Mr Kettlewell’s submissions in reply to this were to the effect that he “thinks it’s a team thing by Centrelink to stop all kinds of welfare stuff” and that “everything Centrelink has brought up with him has been sorted.” While nothing turns on this in terms of the issues for review, the Tribunal notes that the latter part of Mr Kettlewell’s submission appears to be, precisely, the Secretary’s point in that Mr Kettlewell’s willingness to change his answers in a self-serving fashion indicates that minimal weight should be given to Mr Kettlewell’s evidence that he was separated as at 9 June 2016.
Whether a determination under subsection 24(1) of the Act can be made
The Tribunal further finds that the facts and evidence do not provide a special reason, in the particular case (subsection 24(1)(c) of the Act), being “some legal or other practical reason” preventing Mrs Kettlewell’s resources being available for pooling with Mr Kettlewell’s resources,[2] such that the Tribunal ought to exercise its discretion made available to it in subsection 24(1) of the Act to otherwise determine that Mr Kettlewell and Mrs Kettlewell should not be treated as members of a couple.
[2] Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084 at [41] and [42].
CONCLUSION
The Tribunal finds that on 9 June 2016, Mr Kettlewell and Mrs Kettlewell were members of a couple and there is no special reason for it to determine otherwise. Accordingly, the Secretary’s decision to pay Mr Kettlewell the Age Pension at the partnered rate from that date was correct.
DECISION
The decision of the AAT1 dated 25 October 2016, which affirmed a decision of the Department dated 22 July 2016, to reduce Mr Kettlewell’s rate of age pension from the single rate to the partnered rate based on the finding that on 9 June 2016, he was a member of a couple with Mrs Kettlewell and not separated under one roof, is affirmed.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

.........[sgd].........................................................
Administrative Assistant - Legal
Dated: 11 January 2018

Date of hearing: 27 November 2017

Applicant: In person

Counsel for the Respondent: Mr C Bishop

Solicitors for the Respondent: Mills Oakley Lawyers

[2018] AATA 8

11 January 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Natural Justice

Appeal

Date of hearing:	27 November 2017
Applicant:	In person
Counsel for the Respondent:	Mr C Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers