Mikellides And Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 457
•29 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 457
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3598
GENERAL ADMINISTRATIVE DIVISION ) Re Andrea Mikellides Applicant
And
Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date29 June 2011
PlaceSydney
Decision
The decision under review is set aside and the Tribunal decides instead that Mrs Mikellides has not been a member of a couple since 5 February 2009.
...................[sgd]...........................
Senior Member
CATCHWORDS
SOCIAL SECURITY – age pension – married woman – whether applicant a member of a couple – applicant living in same house as husband – consideration of all circumstances – decision under review set aside
In Marriage of Todd (No 2) (1976) 25 FLR 260
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Staunton-Smith v SDSS (1990) 32 FCR 164Social Security Act 1991, s 4
REASONS FOR DECISION
29 June 2011 Senior Member Jill Toohey Background
1. Mrs Andrea Mikellides was married in Greece in 1969 and came to Australia with her husband later that year. They have a son who is married with three children, and a daughter who has two children. Their marriage has not been happy for a long time but, other than a brief period when they lived apart while building a new home, Mr and Mrs Mikellides have always lived in the same house.
2. Mrs Mikellides is 66 years old. Since August 2008, she has been receiving the age pension. She seeks review of a decision concerning the rate at which her pension is paid.
3. The background to Mrs Mikellides’ application is somewhat unusual. For ten years up until February 2009, she received various Centrelink payments including a disability support pension and then the age pension, at the rate for a single person. Until February 2009, Centrelink accepted her claim that, although living in the same house, she and her husband were separated for the purposes of Centrelink payments.
4. In February 2009, Centrelink decided that Mrs Mikellides was living with her husband as a member of a couple with the result that, because of his income from employment, she was no longer entitled to the age pension.
5. It is not clear exactly what prompted the decision to treat Mrs Mikellides as a member of a couple after so long. It appears that, sometime after she started receiving the age pension in April 2008, Centrelink decided to review her circumstances. Centrelink makes no submissions in respect of the period before 5 February 2009.
6. On 2 August 2010, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision to treat Mrs Mikellides as a member of a couple.
The issue
7. I have to decide whether or not Mrs Mikellides is a member of a couple for the purposes of payment of the age pension.
Legislation
8. The rate at which a person is paid the age pension is calculated according to a formula in the Social Security Act 1991 (the Act) and varies according to whether she or he is single or a member of a couple. A member of a couple is paid less than if she or he were single, the rationale being that a couple has the ability to pool resources and live more cheaply than if each were single.
9. By s 4(2) of the Act, a person is a member of a couple for the purposes of the Act if she or he is legally married to another person and is not, in the Secretary's opinion, living separately and apart from the other person on a permanent or indefinite basis.
10. Section 4(3) of the Act provides that, in forming an opinion about the relationship between two people for the purposes of s 4(2), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following:
(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.
The evidence
11. Mrs Mikellides gave evidence through an interpreter. Her evidence was often difficult to follow, partly because of language difficulties and partly because she frequently became distressed and agitated. Her daughter, Gina Viera, and her daughter-in-law, Jennifer Mikellides, also gave evidence. Her husband was summonsed after he declined to appear and give evidence otherwise.
12. Documents in evidence include those provided by the respondent relevant to the review (the “T-documents”) and documents including bank records submitted by Mrs Mikellides.
13. The SSAT in its written reasons stated that it did not find Mrs Mikellides or her husband to be entirely credible in their evidence and it thought each appeared evasive at times. It acknowledged that, in Mrs Mikellides’ case, this may have been due to her limited competence in English but it thought her English language skills were adequate when she spoke without an interpreter.
14. I formed a different impression. I am satisfied that both Mrs Mikellides and Mr Mikellides gave their evidence truthfully. I did not find either of them evasive. To the extent that there were any inconsistencies between their evidence before the SSAT and before this tribunal, or between each other, the inconsistencies were minor and did not, in my opinion, reflect on the credibility of their evidence overall.
Claimed date of separation
15. On Centrelink forms over the years, Mrs Mikellides has given varying dates when she separated from her husband. For instance, on a form in November 2000, wrote that she separated in “98”; on a form in January 2008, she wrote “Not sure (about 5 to 6 years)”; and in April 2008, she wrote “1995 Not exactly sure”.
16. Such a range of dates might lead to doubt about the veracity of Mrs Mikellides’ claims but I am satisfied in this case that it reflects a separation that evolved over many years and that she and her husband have led such separate lives for so long that it is now difficult to nominate any particular time when the relationship ended.
17. Mr Mikellides has given different dates again. In a Centrelink form completed in September 1999, he stated that he separated from his wife “6-7 years ago”. In oral evidence, he said things changed after their son was born, 36 years ago; they gradually stopped sleeping together and “bit by bit I started being cold with her … my life was miserable and it is miserable now”. He identified “the end [of the relationship], never again” as around 1993.
18. For present purposes, I need only determine whether Mrs Mikellides has been a member of a couple since February 2009. For the following reasons, I am satisfied that she has not, and that the decision under review should be set aside.
Financial aspects of the relationship
19. Around 2007, Mr and Mrs Mikellides demolished the house they owned as joint tenants, sub-divided the property and built two houses. They own one house as joint tenants and live there with Ms Viera and one of Ms Viera’s daughters who has an intellectual disability. The mortgage is in their joint names.
20. They transferred the other house to their son and daughter-in-law who live there with their three children. Although documents show they transferred the house to their son for $425,000, in fact no money changed hands. Their son pays a mortgage on his house.
21. Mr and Mrs Mikellides borrowed $500,000 to build the houses. She was asked in evidence why she took on such a large commitment with someone from whom she regards herself as separated. She says she did it for her children; they pressured her and said they only needed her signature. She does not suggest that she did so unwillingly; she clearly wants to see her children provided for.
22. In December 2010, Mrs Mikellides and her husband took on another joint liability when they went guarantors for a loan of $36,000 for Ms Viera who was in financial difficulty. Ms Viera makes the repayments. Mrs Mikellides does not deny entering into this arrangement with her husband but says it was not for herself; Ms Viera makes the repayments and she has nothing to do with the loan.
23. Mr and Mrs Mikellides have a number of bank accounts in joint and separate names. They have an ANZ bank account in joint names which it appears Mr Mikellides’ pay goes into and from which the mortgage is paid. Mrs Mikellides gave evidence that she went to the bank with Ms Viera to sign the paperwork for this account; her husband went separately because she did not want to go with him. They both have authority to operate the account and, while the houses were being built, they both arranged payments to the builder from the account. However, Mrs Mikellides gave evidence that it is not her money and she cannot spend it, and clearly she does not, even though she has no income.
24. Under cross-examination, both Mr and Mrs Mikellides agreed that they “talk about money” but it is clear they only do so when necessary. They both say they are “not enemies” but Mr Mikellides described their talk as “not like a normal married couple”. … We not talk, not any more. We’re not normal couple. … Because we both of us cold [towards] each other”.
25. Until her pension was stopped in February 2009, Mrs Mikellides would withdraw most of her fortnightly pension in cash. She would leave $150 each fortnight in cash on a table in Mr Mikellides’ room for what she describes as “rent” (but which went towards the mortgage repayments). Some household bills are in joint names, others in Mr Mikellides’ name only. Until February 2009, all household expenses and bills were split three ways between Mr and Mrs Mikellides and Ms Viera.
26. Since February 2009, Mrs Mikellides has had no income. She says she has sold her jewellery and has “maxed out” her credit card to pay for basic living expenses such as food, and chemist and doctors’ bills. A statement shows that she owes approximately $4000 on her credit card and payments are overdue. A letter from the bank in February 2011 shows that her request to extend her credit limit was refused. She cannot afford to pay for basic items, and Ms Viera says she is always asking for money. She lives on whatever her son and daughter can give her.
27. Mr Mikellides and Ms Viera now meet the whole cost of the mortgage and any other household expenses themselves.
28. Mrs Mikellides gave evidence that she has a medical condition which she describes as cancer in her head or neck. Ms Viera describes her condition as “tumours”. Mrs Mikellides says she is not having any treatment because she cannot afford to see a doctor, although I note that, at the time of the hearing she had an appointment to see a specialist. Mr Mikellides does not appear to be aware of her condition but, if he is, he is not helping her financially.
29. Mr Mikellides knows that Mrs Mikellides has no income, and says he does not care; she is always asking everyone for money, but it is clearly of no interest to him. Ms Viera says she has been “hassling” him to given them money but he tells her to “go to hell”. The following exchange at the hearing illustrates his attitude:
MS TOOHEY: When you say you don't support her, how does she live?‑‑‑I don't know. Perhaps from my son, my daughter. The money I get, your Honour, is not enough for me. Just I get it. She not give me at all, she not help at all. Whatever I get from my cut, I work a week, straight away on the pay day it goes to the book – goes to the payment.
Do you know what she does if she has a doctor's bill?‑‑‑I don't know. Medicare perhaps.
Do you know what she does if she has to go to a chemist?‑‑‑I don't know. I never go with her and I don't know.
Do you have any idea how she pays for anything?‑‑‑No. I don't know.
Do you ever ask your daughter?‑‑‑No.
Do you ever think about it?‑‑‑No.
30. Mrs Mikellides has a car in her name which her husband uses several times each week. They both consider he has an interest in it because she bought it using a car he gave her, which he was not using, which she traded in for $4000 towards the purchase price. Mrs Mikellides used to pay the registration and insurance. And her husband contributed to running costs and petrol costs. He still pays for petrol and now takes the car whenever he needs it.
31. Until about 2009, Mrs Mikellides was the nominated beneficiary of her husband’s superannuation. Around that time, he changed the nomination to Ms Viera and her daughters. He and Mrs Mikellides had a joint Medicare card until 2010 but now have separate cards, apparently on advice from Centrelink. When they had a joint card, they kept it in a box in the kitchen with bills and other household papers and each took it as they needed it.
32. Until recently, Mr Mikellides included Mrs Mikellides as his spouse on his tax returns. She says she has told the accountant they are separated but he has continued to include her. Mr Mikellides gave evidence that she is no longer being included.
Nature of the household
33. The house in which Mr and Mrs Mikellides and Ms Viera live has three floors, four bedrooms and three bathrooms. All three gave evidence that Mrs Mikellides sleeps on the top floor and has a bathroom on the second floor. Ms Viera and her daughter sleep on the second floor and use another bathroom on that floor. Mr Mikellides has a bedroom on the second floor which he often keeps locked; he has a bathroom on the ground floor, although it appears he might occasionally use a bathroom on the second floor during the night if he does not want to go downstairs.
34. Mr Mikellides cleans his own bedroom and bathroom, and washes his own clothes on Saturday mornings. Mrs Mikellides does no housework for him. She used to do all the housework but these days Ms Viera mostly does it for her, and sometimes for her father. They do their own shopping.
35. Mrs Mikellides never cooks for her husband. She cooks less in any event these days, leaving most of it to Ms Viera. She occasionally cooks Greek dishes when the grandchildren ask for them. Mr Mikellides cooks for himself or will eat what Ms Viera has cooked. They never eat together and if he makes a barbeque for the grandchildren, Ms Viera says her mother refuses to eat it.
Social aspects of the relationship
36. Mr and Mrs Mikellides have not gone out socially for many years. She gave evidence that she has never been very sociable, unlike her husband who is more extroverted, and she has never liked going out. They both gave evidence that, if they are invited somewhere together, they check to see if the other is going and, if so, will not go themselves. At Christmas, he goes to friends’ or “to the pub”.
37. Ms Viera confirmed that she cannot remember the last time her parents did something together as a couple. Ms Jennifer Mikellides gave evidence that she could not recall Mr Mikellides coming to her children’s baptisms and it was embarrassing at her wedding (16 years ago) when they separated themselves and refused to sit together.
38. It is not clear how many relatives or friends are aware of the state of the relationship. Mrs Mikellides says she had one elderly friend who knew but he has died; all her relatives are in Cyprus and she has not told them. Mr Mikellides says he has friends who know but he has kept things secret from relatives in Greece.
Any sexual relationship
39. Both Mrs Mikellides and Mr Mikellides say there has been no sexual relationship between them for many years. They have slept apart for at least the past 15 years or so. There was an incident some years ago which it is not necessary to detail here but which marked for Mrs Mikellides the end of any possible sexual relationship between them. Ms Viera gave evidence that she recalled her mother sleeping on a couch in the lounge room since at least 1996 when they lived in a flat before moving to their present home.
40. The Secretary contends that there is no way of verifying this claim one way or the other and so little or no weight should be placed on it but it is in the nature of a sexual relationship that it can rarely be verified one way or the other and this is not in itself a reason not to give weight to this consideration.
41. Having had the opportunity to observe Mr and Mrs Mikellides giving evidence, I have no reason to doubt their evidence on this point. I accept that they have not had a sexual relationship for many years.
The nature of the commitment to each other
42. Mrs Mikellides was asked whether she intends continuing to live as she is. She says she prefers her life like that, it is quieter. She does not intend divorcing. She says she fears if they separate, her husband will spend all the money on women and there will be nothing left for her children.
43. Mrs Mikellides gave evidence that, as late as 2007 when they were building their new house, she hoped she and her husband might resolve their differences but she no longer thinks it possible. They are both adamant and I accept, that there is no longer any possibility of reconciliation of any sort.
44. Mr Mikellides gave evidence that they have never discussed separating but he now intends getting a divorce, separating their finances and selling everything and disappearing. It is difficult to know whether he really means that but he said so in front of Mrs Mikellides and clearly was not concerned how she might feel.
Consideration
45. A married couple may live separately and apart even though they continue to live under the same roof. Where a person claims to be in such a relationship, particularly where there may be a financial incentive, the circumstances require close scrutiny.
46. In Staunton-Smith v SDSS (1990) 32 FCR 164, O’Loughlin J noted the comments of Watson J in In Marriage of Todd (No 2) (1976) 25 FLR 260, at 262-263:
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 in 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 my be present in a particular marriage – elements such a 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.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
47. The factors in s 4(3) are not exhaustive and nor should they limit the inquiry. “The Tribunal will make its determination whether a man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it”: Staunton-Smith v Secretary, Department of Social Security (above) at 170.
48. In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546, French J (as he then was) considered a number of authorities on the meaning of the term “marriage-like relationship” and held (at 555) that:
49. Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1.Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2. Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other.3.In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4. 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.
5.Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.
50.His Honour noted, at 556:
The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
51. The Secretary contends that Mr and Mrs Mikellides have a strong commitment to each other and their family. I do not agree. The evidence shows that they have a strong commitment to their children and grandchildren but it was clear at the hearing that they almost cannot stand the sight of each other. It is clear that neither provides the other with any companionship or emotional or other support. There is nothing left of their marriage. As Mr Mikellides says, they just make each other miserable.
52. It is true that Mr and Mrs Mikellides have strong financial ties in the form of their joint ownership of their house and their joint liability to pay for it. But in all other respects they are financially separate to the point that he does not care that she has had no income for over two years and has no intention of helping her. It might be said that he provides for her in kind by continuing to pay the mortgage and other bills but he clearly does not do so out of any desire to help her.
53. Taking into account all of the circumstances of their relationship, I am satisfied that Mrs Mikellides has not been a member of a couple with Mr Mikellides since 5 February 2009. The decision under review is set aside.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey
Signed: .....................[sgd]...........................................................
AssociateDates of Hearing: 28 February and 1 April 2011
Date of Decision: 29 June 2011
Applicant: Self-representedSolicitor for the Respondent: Jennifer Maclean, Centrelink Program Litigation & Review Branch
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