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

[2015] AATA 795

Limburg and Secretary, Department of Social Services (Social services second review) [2015] AATA 795 (14 September 2015)

Division	GENERAL DIVISION
File Number	2014/6463
Re	Joan Limburg
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member N A Manetta
Date	14 September 2015
Date of written reasons	13 October 2015
Place	Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY - whether applicant was a member of a couple for social security purposes - financial aspects of relationship - nature of the household - social aspects of relationship - sexual relationship - nature of people's commitment to each other – totality of circumstances - decision under review affirmed.

LEGISLATION

Social Security Act 1991 s 4(2)(a), (3)

CASES

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

Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

REASONS FOR DECISION

Senior Member N A Manetta

13 October 2015

1. After I delivered my oral decision in this matter, I received a request for written reasons, which I now publish.

2. This is an application by Mrs Joan Limburg for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 18 November 2014.  Mrs Limburg and her husband, Mr Jacobus Limburg, had brought an appeal to the SSAT following a decision in Centrelink on 1 August 2011 that they were “a couple” for the purposes of the assessment of their entitlement to social security benefits under the Social Security Act, 1991 (the Act).  In particular, this decision meant that Mr Limburg’s age pension continued to be paid to him at the so called “partnered rate”.  Likewise, Mrs Limburg’s disability support pension and, subsequently, age pension were paid at the partnered rate.  The partnered rate is less than the single rate. 

3. As I have said, Mrs Limburg has brought an application to this Tribunal in respect of the SSAT’s decision.  Mr Limburg brought a late application to the Tribunal and was granted an extension of time within which to make it.  He subsequently withdrew his application.  I note that his withdrawal has had no bearing on my decision in respect of Mrs Limburg’s application. 

4. On the hearing of her application, Mrs Limburg represented herself,[1] while Mr Hay appeared for the respondent. 

   [1] Assisted in part by Ms O’Dea.

5. The critical time for the assessment of the circumstances of the relationship is July 2011.  I note my task is to decide the question afresh on the evidence before me, not to review the SSAT’s decision or Centrelink’s officers’ decisions for error.[2] 

   [2] Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

   BACKGROUND FACTS

6. I set out below the salient background facts.  These facts were not in dispute for the most part.  Mrs Limburg is 66 years of age and was born in Orroroo near Peterborough.  Her early career, in the mid-1960s, saw her working as a telephonist for what was then known as the PMG Department.  She ceased work there in about 1982. 

7. She gave evidence that she married Mr Limburg in 1968 at the age of 19.  He was some three or four years older.  Initially, they were very happy together.  In 1970, their first child, a boy, was born, and in 1972, their second-born, a girl. 

8. In 1974 they purchased a property at 29 Jervois Street, Peterborough, which became their marital home.  Mrs Limburg gave evidence that they separated for a time in 1976.  They were reconciled later that year, however, and in 1980 their third child, a boy, was born. 

9. Until recently, they had both resided at that address continuously since 1974 (apart from the period of separation in 1976 to which I have referred).  In 1989, they bought the adjoining block, at number 31, with a dilapidated house upon it, which was used mainly for storage. 

10. Mrs Limburg’s evidence to the Tribunal was that in 1989, the marriage was still “ok” and that there were no serious problems in it until about 2004.  At about that time, however, she began to have psychotic episodes involving what she described as vivid hallucinations.  She gave evidence that Mr Limburg tried hard to support her emotionally, but he would also leave the house for hours at a time because she was often agitated or angry. 

11. Unfortunately, her illness led her to imagine that her husband was having an affair with a woman in the town.[3]  Mrs Limburg’s conviction that her husband was unfaithful led, predictably, to difficulties in her marriage.  In addition, over the years, Mrs Limburg suffered a number of injuries which she attributes to her employment.[4]  She described the most serious injuries as paralysis of the left arm, an injured knee, and an injured back arising from an altered gait caused by her injured knee.

    [3] Mrs Limburg’s evidence to the Tribunal was that she now accepts her belief to be false.  In his evidence to the Tribunal, Mr Limburg denied he had had an affair. 

    [4] With a meat works operated by Metrovelda Pty Ltd.

12. Mrs Limburg gave evidence of a breakdown in 2004 following her first psychotic episode.  She said she was detained in Peterborough under the State’s Mental Health Act before being detained in the Royal Adelaide Hospital, from which she was later transferred to Noarlunga Hospital. 

13. I accept Mrs Limburg’s evidence, corroborated by Mr Limburg, who also gave evidence, that their marital relationship declined from 2004 onwards.  I have no doubt that Mrs Limburg’s false, but genuinely held, belief that her husband was having an affair led to bitter and sometimes heated exchanges.  Her ongoing health problems would not have helped matters. 

14. I accept that they began to occupy separate bedrooms in about 2007 or, in any event, well before 2011.  I accept also that they began at that time- that is, around 2007- to take their meals separately.  I accept that Mr Limburg began to use the shade-house as an improvised kitchen where he would barbecue meat and otherwise prepare his meals. 

15. Mrs Limburg gave evidence of spending increasing amounts of time from 2008 onwards in Broken Hill with her brother.  She referred to this in her evidence in support of her contention that her marriage had broken down completely.  Whilst I accept the trips to Broken Hill gave Mrs Limburg welcome respite from her unhappy marital home, I do not accept that her principal reason for visiting Broken Hill was to leave her husband as she contended.  Mrs Limburg’s brother, Mr Lee, wrote an email, tendered in evidence,[5] which described the situation as follows:

    “To whom it may concern

    My sister Joan Limburg had regularly visited and stayed with me in Broken Hill during the period From November 2008 up to and including June 2014.

    Mainly to provide extra support care and assistance during outings for our mother (A severe Stroke victim) while she was a resident at St Annes Nursing Home.

    Joan and my mother shared a special bond as Joan had had previously assisted her on a daily basis while she resided in Peterborough after the death of our father.

    I do not keep records of all visits and extended stays of family members, as I find this most unusual.

    However Joan always made the effort to be here for Mothers Days, Birthdays, Easter, Christmas and times of illness.

    Our mother required a high level of care which required more than one person to tend to her needs during outings for special events and I am most grateful that Joan made herself available to assist during these difficult times.”

    It is clear from this e-mail, and I find, that Mrs Limburg’s principal motivation in visiting Broken Hill was to care for her mother.  As I have said, that does not mean that the trips did not offer Mrs Limburg relief from the strains of her marriage.

    [5] Exhibit R2.

16. Mr and Mrs Limburg continued to receive their family at their Jervois Street home in 2011.  They gave evidence that their children were aware of the difficulties in their marriage, and Mrs Limburg spoke of having a frank relationship with her elder son, who had moved back to Peterborough in 2007.  Her younger son was also in Peterborough at that time according to Mrs Limburg, but she was unsure whether her daughter was there as well.  She did not speak about divorce with any of her children.  She gave evidence that she had considered separation intermittently, but did not take steps to progress a separation.[6]  Although she spent time with her children, she did not ever consider living with them.

    [6] Her oral evidence in respect of divorce, as opposed to separation, was not clear.  Her final written submission to the Tribunal was that she would not divorce her husband because of her strong religious beliefs.  I accept that statement, although it was not given as evidence.  It is consistent with Ms O’Dea’s evidence that Mrs Limburg discussed with her separation, but never divorce.

17. I accept that Mr and Mrs Limburg continued to operate a joint bank account in 2011.  It would appear the marital home in Jervois Street and the block next door are owned in joint names without any mortgage.

18. I accept Mr and Mrs Limburg’s evidence that she was principally responsible for paying all household bills from their joint account.  I accept Mr Limburg’s evidence that he did the heavier housework that might ordinarily have fallen to Mrs Limburg to do in the context of what appeared to me to be a traditional marriage and a traditional division of roles.  Mrs Limburg conceded that Mr Limburg did do some of the housework, although she minimised its importance.

19. Mrs Limburg conceded that she has not altered her will although I accept that there may be little of value to bequeath apart from the marital home and the block next door.[7] 

    [7] The evidence in relation to these properties was not clear. I am uncertain whether they are held as joint tenancies with a right of survivorship or as tenancies in common. 

20. I accept that there are very few social outings for Mr and Mrs Limburg.  They do, however, continue to receive their children and grandchildren at home together. 

21. I accept that Mrs Limburg moved out of the family home to a hospital unit either late last year or earlier this year.  She gave evidence that since that time, her relationship with her husband has improved.  He visits her once or twice a week with her mail, and they chat over a coffee.  I find that these visits are at least partly social.  Mrs Limburg gave evidence that she can imagine one day resuming her marital life with Mr Limburg but only when she is feeling better.

22. Mr Limburg’s evidence to the Tribunal largely confirmed Mrs Limburg’s although he was less certain in respect of some details.  He confirmed their domestic arrangements as of 2011 and the prior history of their marriage.  When asked about the possibility of divorce, Mr Limburg said that it had never entered his mind.  He could not explain why not.  He eventually added: “Divorce is not an answer to life’s problems”.  I accept this evidence reflects his fundamental values and beliefs in this regard.  I also accept his evidence that he does not see a realistic possibility of their living together again at Jervois street. 

23. I also accept that Mrs Limburg attended many of her medical appointments in the absence of Mr Limburg. 

24. Finally, I note that I do not find Ms O’Dea’s evidence to be of particular assistance to my decision in this matter.  Most of her knowledge was second hand (that is, from Mrs Limburg) and I do not find that it added much of significance.  I accept, however, Ms O’Dea’s evidence that Mrs Limburg had raised with her the possibility of leaving Mr Limburg but did not discuss divorce with her.  Rather strangely, she never advised Mrs Limburg to seek legal advice in that regard.  She gave evidence that she did not understand Mrs Limburg to have ever sought that advice. 

    LEGISLATION

25. The question for me to decide under section 4(2)(a) of the Act is whether Mrs Limburg was “living separately and apart” from Mr Limburg “on a permanent or indefinite basis” in July 2011.  In addressing this question, I must have regard to all circumstances of the relationship and, in particular, to certain specified matters.[8]  If the question is answered in the affirmative, Mrs Limburg was not “a member of a couple” at that time.

    [8] Section 4(3) of the Act.

26. I fully accept that the law permits an affirmative answer to the question even though Mr and Mrs Limburg were living at the relevant time under the same roof.  Whilst that is true, the decision to remain under the one roof despite a large degree of estrangement requires explanation in my opinion. 

    REASONS

27. In this case, for reasons I shall set out, my conclusion is that neither Mrs Limburg nor Mr Limburg had given up entirely on their marriage despite the extraordinary difficulties they faced.  For her part, she held a genuine if mistaken view that he was unfaithful.  Mr Limburg, for his part, bore the brunt of her temper, illness, and unjust allegations of infidelity.  I shall return to the question of their ongoing commitment to the marriage in due course, but I turn first to those matters to which particular attention is required to be paid under section 4(3) of the Act.[9] 

    [9] Each of the paragraphs in s 4(3) (with the exception of paragraph (d)) lists specific sub-factors to be considered.  I have not listed these separately but they have been considered.

    Section 4(3)(a): “Financial aspects of the relationship”

28. First, I must have regard to the financial aspects of the relationship.  Here, I find that Mr and Mrs Limburg had a joint bank account at the relevant time and that Mrs Limburg exercised control over it.  She remained responsible, as she had throughout the marriage, for the payment of household bills, and she used that account.  I accept Mr Limburg’s evidence in this regard.  Their day-to-day expenses in the marital home in 2011 continued to be shared and met from pooled resources.

29. The marital home and the block of land next door at number 31 remain in joint ownership.  These are the most significant financial assets in the marriage.  It is not clear to me why Mrs Limburg would not have pressed for the sale of the matrimonial home, or at least of the block next door, to obtain personal control of some of the proceeds of a significant asset jointly owned with Mr Limburg if the marriage were truly over in 2011. 

30. I accept that Mr and Mrs Limburg both considered that they each own their own car, but that is not particularly unusual.

    Section 4(3)(b): “Nature of the household”   

31. Secondly, I must have regard to the nature of the household.  I accept that Mrs Limburg was estranged from her husband in 2011.  I accept that they no longer shared a bedroom, often ate separately, and, indeed, Mr Limburg would prepare his food in an improvised kitchen outdoors.  Each was responsible for his or her own laundry.  Nevertheless, whilst the occasions were infrequent, Mr Limburg would accompany Mrs Limburg on shopping trips, and he assumed responsibility for the heavier household cleaning chores of which Mrs Limburg was no longer capable.  There was, accordingly, a limited degree of ongoing domestic cooperation notwithstanding the estrangement between them. 

    Section 4(3)(c): “Social aspects of the relationship”

32. Thirdly, I must have regard to the social aspects of their relationship.  Here, I accept that Mrs Limburg’s estrangement from her husband meant that there were very few social activities they engaged in jointly.  Mr and Mrs Limburg gave evidence that friends and family were aware of the difficulties in their marriage.  On the other hand, they continued to receive family members jointly at home.  They did not make arrangements to see family members at home in the other spouse’s absence.

    Section 4(3)(d) and (e): “Sexual relationship” and “Nature of people’s commitment to one another”

33. Finally, I must have regard to any sexual relationship and the nature of Mr and Mrs Limburg’s commitment to each other.  As to this first aspect, I accept that the marriage was no longer intimate in 2011 and had not been for some time. 

34. As to the second aspect, I find that despite the extreme difficulties between them, Mr and Mrs Limburg remained committed to one another, at least to some degree, in 2011.  In one way, it is an admirable testament to the strength of their marriage that it could withstand the vicissitudes of Mrs Limburg’s illnesses including her psychotic episodes and her firmly held belief that Mr Limburg was having an affair. 

35. I bear in mind that Mrs Limburg had been married to Mr Limburg since 1968 and had had three children with him.  Their marriage had been happy for some years on the evidence before me.  They had purchased their family home in 1974 and still occupied it in 2011.  Importantly, Mr Limburg gave evidence, to which I have already referred, that divorce never entered his mind and that it was not in his view “an answer to life’s problems”.  He continues to socialise with Mrs Limburg on his once or twice-weekly visits to her and does so with her cooperation. 

36. For her part, Mrs Limburg would not contemplate divorce, and on the evidence before me she never actively pursued separation from Mr Limburg notwithstanding their earlier separation in 1976.  I accept Ms O’Dea’s evidence that Mrs Limburg had discussed separation “on and off” with her for some eight to ten years, but Mrs Limburg did not take practical steps in this direction.  Although Mrs Limburg gave evidence that she had a frank relationship with her son, she did not explore with him the option of living with him, at least on a temporary basis while she found another place to live and while money was raised, for example, from the sale of number 31 Jervois Street (if not the marital home at number 29).

    OVERALL CONCLUSION IN RESPECT OF THE RELATIONSHIP

37. Neither Mr Limburg nor Mrs Limburg persuaded me that their commitment to one another was at an end, or that their marriage was over.  I do not doubt at all that the relationship had become poisoned by Mrs Limburg’s false belief in her husband’s infidelity.  Nor do I doubt that the relationship was torrid and that there were many unhappy and verbally violent exchanges. 

38. Even so, I believe Mrs Limburg remained committed to the relationship in 2011 despite its difficulties in her mind: I do not believe she had given up on it. Had she given up on the relationship, she would have left the marital home altogether in the absence of a reason constraining her freedom in this regard. Mrs Limburg did not give any evidence to the Tribunal of such a reason,[10] and I bear in mind here the precedent in 1976 where Mrs Limburg did leave Mr Limburg.

    [10] Apart from her understanding that she could not move interstate to Broken Hill without prejudicing certain legal claims she had.

39. Looking at all the circumstances of the relationship, I believe this is a case where an estranged couple decided, tacitly, to persevere in a longstanding, although now strained, marriage rather than separate from one another.  Whilst largely estranged from one another at the relevant time in 2011, they nevertheless persevered in their domestic life together.  Their estrangement resulted in a large degree of physical separation in the home, and much unhappiness, but not a fundamental severance of their commitment to one another or to the marriage itself.[11] 

    [11] Cf, for example, Staunton-Smith v. Secretary, Department of Social Security (1991) 32 FCR 164, at 175.

40. In my opinion, on the evidence before me, Mrs Limburg was not living separately and apart from her husband on a permanent or indefinite basis in July 2011.  Accordingly, she was “a member of a couple” under s 4(2)(a) of the Act. 

    DECISION

41. I affirm the decision under review.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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Administrative Assistant

Dated 13 October 2015

Dates of hearing	16 & 17 July, 7 August and 14 September 2015
Applicant	In person
Advocate for the Respondent	Mr A Hay
Solicitors for the Respondent	Dept of Human Services