Mlynarczyk; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 386

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 386

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W 200600060

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And GRZEGORZ MLYNARCZYK

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date9 May 2008

PlacePerth

Decision The Tribunal sets aside the decision under review and remits the matter to the applicant for reconsideration in accordance with the direction that the rate of disability support pension payable to the respondent be calculated on the basis that he is, and at all material times has been, a “member of a couple” for the purposes of the Social Security Act 1991 (Cth).

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

SOCIAL SECURITY – disability support pension (DSP) – respondent qualified for DSP – rate of DSP payable to respondent -  respondent legally married to another person – respondent and other person living under same roof – consideration of all aspects of interpersonal relationship of respondent and other person – financial aspects – nature of household – social aspects – existence or non-existence of sexual relationship – nature of mutual commitment – weighing and balancing all aspects of relationship – respondent not living separately and apart from other person on a permanent or indefinite basis – respondent a member of a couple – decision under review set aside

Social Security Act 1991 (Cth), s 4(2) and s 4(3)

Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546

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

REASONS FOR DECISION

9 May 2008	Deputy President S D Hotop
Introduction

1.      Grzegorz Mlynarczyk (“Mr Mlynarczyk”) and Grazyna Mlynarczyk (“Ms Mlynarczyk”) were legally married in Poland in 1970 and they and their 3 children migrated to Australia in 1982.

2.      On 4 July 2002 Mr Mlynarczyk lodged with Centrelink a claim for disability support pension (“DSP”).  His claim was granted and he was paid DSP, initially at the single rate on the basis that he was a separated person, but subsequently, from 4 March 2004, at the partnered rate on the basis that he was a “member of a couple” for the purposes of the Social Security Act 1991 (Cth) (“the Act”).

3.      On 16 September 2004 an Authorised Review Officer (“ARO”) within Centrelink affirmed the decision that DSP was payable to Mr Mlynarczyk at the partnered rate on the basis that he was a “member of a couple”.

4.      On 3 February 2006, however, the Social Security Appeals Tribunal (“SSAT”) set aside the ARO’s decision and instead decided that, as Mr Mlynarczyk has not been a “member of a couple” since 1994, DSP was payable to him at the single rate.

5.      The Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (“the applicant”) has applied to this Tribunal for a review of the decision of the SSAT.

The Issue and the Tribunal’s Determination

6. The ultimate issue for the Tribunal’s determination is whether Mr Mlynarczyk is, and at all material times has been, a “member of a couple” for the purposes of the Act.

7. For the reasons which follow, the Tribunal has determined that Mr Mlynarczyk is, and at all material times has been, a “member of a couple” (the other member being Ms Mlynarczyk) for the purposes of the Act, and that, accordingly, DSP is, and at all material times has been, payable to Mr Mlynarczyk at the partnered rate and not at the single rate.

The Legislation

8. The phrase “member of a couple” is relevantly defined in s 4 of the Act as follows:

“4(1)    In this Act, unless the contrary intention appears:

…

member of a couple has the meaning given by subsections (2), (3) (3A), (6) and (6A);

…

Member of a couple – general

4(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

…

Member of a couple – criteria for forming opinion about relationship

4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) …, 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 expense;

(b)the nature of the household, including:

(i)     any joint responsibility for providing care or support of children; and

(ii)     the living arrangements of the people; and

(iii)     the basis on which responsibility for housework is distributed;

(c)the social aspects of the relationship, including:

(i)     whether the people hold themselves out as married to each other; and

(ii)     the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)     the basis on which the people make plans for, or engage in, joint social activities;

(d)any sexual relationship between the people;

(e)the nature of the people’s commitment to each other, including:

(i)     the length of the relationship; and

(ii)     the nature of any companionship and emotional support that the people provide to each other; and

(iii)     whether the people consider that the relationship is likely to continue indefinitely; and

(iv)    whether the people see their relationship as a marriage-like relationship.”

The Evidence

9.      The evidence before the Tribunal comprised:

· the documents (T1-T50, pp 1-569) lodged with the Tribunal by the applicant in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (Exhibit A1);

·     various documents tendered in evidence by the applicant (Exhibits A2-A13);

·     various documents tendered in evidence by Mr Mlynarczyk (Exhibits R1-R9); and

·     the oral evidence of Mr Mlynarczyk, Ms Mlynarczyk, Robert Dominiak, Stanislaw Michor, Michael Borkowski, Mieczyslaw (Michael) Mlynarczyk, Joanna Mlynarczyk and Kasia Mlynarczyk.

The Evidence of the Witnesses

Mr Mlynarczyk

10.     The contents of Mr Mlynarczyk’s signed statement of evidence, dated 14 November 2006, are as follows:

“…

2.I am married to Grazyna Mlynarczyk (‘my estranged wife’). My estranged wife and I met in Poland in either 1968 or 1969.  We were married in 1970.  We have 3 children:  two sons (Mark, Michael) and a daughter (Kasia).

3.        In 1982 we all came to Australia from Poland.

4.In about 1985 the relationship between my estranged wife and started (sic) to break down.  When my estranged wife started working at pharmaceutical manufacturer things became worse.  There were colleagues of hers at work who were divorced and this seemed to influence her.  I believe it made her think about whether or not our relationship was good enough.

5.In 1994 we separated when my estranged wife and my daughter Kasia left our home and went to live with our 2 sons in Victoria Park.

6.At that time Mark was 22 years old, Michael 20 years old and Kasia 18 years old.  A few weeks after she left Kasia came back to live with me.

7.Kasia stayed with me for about 18 months and she was trying to get her mother and me back together.  In about 1996 Kasia told me that her mother wanted to try again and she told her mother that I wanted to have another go.

8.We did get back together however, it only took a couple of months for us to realise the relationship was over.

9.After the relationship ended again, I decided that it was going to be too difficult financially to pay my estranged wife out her share of the matrimonial home.  As we were both working and as I spent a lot of time outside of the house, things seemed to be alright so I decided that we could just stay in the same house and be separated under the one roof.

10.I had always made the mortgage repayments on the house during the time that I had worked and my wife’s income was used for day-to-day living expenses and utilities.  When my estranged wife moved out in 1994 she had to pay rent and could not pay anything towards the mortgage on the house and I accepted that.  So I continued to make the mortgage repayments on the house.

11.When we first came to Australia we were in Sydney.   I did not speak English very well and it was hard to find work because of the language barrier.  After 2 years we moved to Perth because we were not happy in Sydney and there were better job prospects in Perth.

12.Between 1985 and 1989 I worked as a panel-beater.

13.Between 1990 and 1998 I was doing wall and floor tiling.  I had done tiling in Poland before I came to Australia.

14.Over the years I had problems with my back and had sought treatment.  In 1998 I could not continue to work as a tiler because I was physically incapable of doing the work.

15.In 1996 my estranged wife and I jointly borrowed $20,000 for a (sic) installation of a new kitchen and repainting of our house.  I agreed to this on the basis that the house was a joint asset that needed to be maintained or it would lose its value.

16.Between 1998 and late 1999 I was working as a trades assistant for Clough Engineering at a site in Shenton Park.

17.In 2001 was (sic) diagnosed with heart problems and I stopped working.  I did not apply for social security benefits and lived on my accumulated savings.

The financial relationship of my estranged wife and I

18.Since July 2002 I have been on Centrelink payments.

19.When I stopped working I said to my estranged wife that she would have to pay the mortgage repayments, as I could not afford it.  My estranged wife and I have never said very much to each other about what we have to do financially.  We only ever talk about it if it is necessary.

20.We got into a routine where each of us would pay for different accounts in relation to the house expenses.

21.In light of the fact that my pension is my only income, my estranged wife would sometimes have to pay for an account that I would usually pay because I could not afford to pay it at the time.  If I had some money later I would sometimes make a payment towards the mortgage, to make up. We have balanced the payments of the various accounts the best we can so as to be able to financially afford to remain in the house.

22.In relation to such expenses as payment for food and day-to-day expenses, we use our own money.

23.We have different sections in the pantry and the fridge so that we can keep our goods separate.

24.There are times that my financial arrangements have left me having to borrow money from my children.  Not long ago I had $4,000 owing on my credit card and my children paid it off for me.  I did not talk to my estranged wife about this.  She would only know about it if one of the children told her.

25.In January 2001 my estranged wife told me that she wanted to buy 2 cars.  She had spoken to our son Michael who had said that he could repair and refurbish the cars.

26.My estranged wife would keep one for her own use and sell the other to pay a substantial part of the purchase price of her vehicle.  I agreed to this and on the basis that because if my estranged wife was the one who was paying the mortgage repayments the loan was in effect a loan to her, since she would be the one who would be repaying it.

27.On 17 January 2001 the bank opened up a loan account for my estranged wife and me.  I accessed the loan account 5 times:

(a)On 23 January 2001, I made a cash withdrawal for (sic) $900 and had a bank cheque made for $11,600;

(b)On 25 January 2001, I made a cash withdrawal for (sic) $1,700;

(c)On 15 February 2001, I made a cash withdrawal of $1,700;

(d)On 12 March 2001, I made a cash withdrawal of $1,000;

(e)On 12 December 2001, I wrote a ‘not negotiable’ cheque for $580.65 payable to the Department of Transport.

28.I made the above withdrawals on the loan account at the request of my estranged wife.  The money stated in paragraph 27 (a) to pay (sic) the deposit and purchase price for the 2 cars.  In addition my son Michael asked me to purchase materials and spare parts for work to be performed on the cars.  These are the withdrawals in paragraphs 27(b), 27(c) and 27(d).

29.I drew the ‘not negotiable’ cheque for $580.65 listed in paragraph 27(e) to the Department of Planning and Infrastructure (sic) for stamp duty and licensing for one of the cars.

30.In or about 2002 I did tell Centrelink that I would leave the house if I could get a rental property from Homeswest.  This was because at that time I thought I could do this financially.  I was also feeling depressed and I believed that it might be better to just pack it all up and leave.

31.However, when Homeswest offered me a flat in 2003, I was feeling better and I did not want to leave my home.  I thought why should I have to do that.  Also, the flat was in Balga, which meant that I would be far away from my children and grandchildren.

32.There are three main reasons as to why I want to remain in my house.  First, because of the excessive house prices in the Perth metropolitan area I cannot afford to buy another house.  Second, until recently my daughter, Kasia lived 3 minutes drive away.  My son Michael and daughter-in-law live only about 10 minutes in Kenwick away (sic).  As I am very close to my children and my grandson it is very important to me that I live very close to them. Third, it is a Polish tradition that you have the one home and you stay there.  You do not keep buying and selling houses and moving to different places to live.

33.My daughter, Kasia is single and works.  Therefore, I would go every day to her place to look after my grandson, Monroe.  At that time my estranged wife was also working so I was the only one who could do that.

34.My grandson is now 8 years old.  I am very close to him and I would see him on a regular basis.  However he and his mother recently moved to Mount Lawley and now I see them only about once a week on the weekends and more often during school holidays.

35.When we came to Australia we had a number of joint friends.  As time has gone by, since our separation we only have about two friends who we both still see.  We always see them separately and they never come to our house because it is all too difficult and embarrassing to work out how to do that.  My estranged wife and I would have to talk to each other to make such an arrangement and we do not talk if we can help it.

Domestic arrangements

36.We each cook our own food and we make sure that we cook at different times and eat at different times.  Generally I cook about once a month and I put the food into the freezer.  At present, I have about two months worth of food.  I go out to eat quite often.  I either take some of my food with me or eat at a friend’s place or I go to either my son’s house or my daughter’s house and eat there.

37.At present my estranged wife is cooking with as much garlic as she can because she knows that I hate the garlic and she does it just to irritate me.

38.My estranged wife stopped working.  She hurt herself at work and it is unlikely that she will be able to return to work, because of her injuries.  She has been working at the same firm for over 10 years.

39.It is much harder for us to cope with our situation, with her not being at work.  I think my estranged wife has more trouble than I do.  I exclusively use 2 rooms in the house: my bedroom and my study.  I spend most of my time either in the garage or in my 2 rooms.  I have a computer in my study.  I have a television in my study so I can watch the television there as well.  If there is something that I really want to watch on the television in the lounge, such as the soccer that has been on recently, I will do that.  When that happens my estranged wife will go to her bedroom to watch her television.

40.I see my son Michael and his wife at their house, 2 or 3 times a week.  As well as this I also spend a lot of time with my friends.  This is because it makes things a lot easier for me to cope with my situation.

41.Because of my situation, my friends very rarely come to the house and if they do we generally use the garage.  My estranged wife does not like them coming over but I feel that she must just accept it.  She has a couple of friends but she never has her friends visiting her.  They either go out or she goes to the friend’s place.  When she was on holiday last year, my friends came over to our house far more often and we could use the whole house rather than just the garage.  My estranged wife had gone to Poland with our son and she remained there for two months.  This was a very good time in my life.

42.If there is a ‘do’ on in the Polish community, if I go, my estranged wife will not attend.  Furthermore, with family parties and dinners, if we both go we will drive there separately.  There are also times when my estranged wife will go earlier than I do and will sometimes eat before I arrive, once I arrive she will then leave.  Although this is a very strange situation, the family have got used to it, and it is now accepted practice.

43.In 2002 my estranged wife purchased an investment unit.  I agreed that she could use our house as security for this.  I thought this was fair enough as I have always been prepared to give her, her half share of the house.  My estranged wife and I did not realise that, as we own the house as ‘joint tenants’, that my share of the property was also involved in this loan.

44.My solicitor, has explained to me what was meant by ‘joint tenancy’ and that we could transfer the property into being held by ourselves as ‘tenants in common’ which means that we would each own a half share of the property.

45.To buy the unit my estranged wife had to borrow money from the bank and the bank required that the loan be secured against the title to our house.  I agreed to this, but this was because I thought that it was only my estranged wife’s share of the property that would be affected.

46.Now that my estranged wife and I are aware that we do not each own a specific half share of the property because we are joint tenants, we would like to have the property transferred into our names as tenants in common.

47.One of the main reasons I wish to do this is because I would like to leave my share of the property to our children.  I don’t want my estranged wife to acquire my interest in the house if I predecease her.

48.I have signed a transfer document to effect the change in the interests of the house to tenancy in common.  I am making arrangements to have the transfer dealt with in the Titles Office.  Annexure ‘A’ is a copy of the transfer form I have signed.

49.In relation to the ‘mutual account’ that was reactivated by my estranged wife, I was unaware of this until a few months ago, when my daughter-in-law went through my financial situation.

50.I discussed this with my estranged wife who said that she had only done this, as her accountant had told her that she should set up the account for her wages to be paid into so that her mortgage account payments, could be taken by the bank from that account.

51.My estranged wife and I went to the bank with my daughter-in-law and we closed the account.  My estranged wife then set up her own account for the payment of her mortgage.

52.My estranged wife and I have not applied for a divorce.  Neither of us have had a partner, so there is no reason why we should pay for the costs that are involved.  As far as I am concerned, the likelihood of my wishing to marry again is minimal.  In relation to my wife, if she wants to have a divorce in the future, then she can pay for it.

53.I do not wear my wedding ring because I regard the marriage as at an end.

54.I do not have a sexual relationship with my estranged wife.

55.I understand that my estranged wife has private medical insurance with HBF.  I am not included in her health care plan.  As I cannot afford private insurance I just have Medicare.

56.About 6 months ago I understand that my estranged wife asked our daughter-in-law what would happen with her superannuation if she died and had not named anyone as beneficiary.  My daughter-in-law advised her that it was very likely that I would receive the superannuation, as I was still her husband.  Therefore she arranged for the children to be named as her beneficiaries.

57.I have no superannuation so I have had no need to consider what I would have done with this.  However, if I had superannuation I would not have left it to be paid to my estranged wife in the event of my death.

58.If I should ever do something such as win lotto, I would pay my estranged wife for her half share of the house.  I would arrange for a valuation of the house so that I could ascertain the amount that she should pay.  I would not pay for anything more than a half share in the house, as I see no reason why she should have any benefit from me.

59.On 21 September 2006 I made a will leaving all of my real and personal property to my children.  I have made no provision in my will for my estranged wife.  Annexure ‘B’ is a copy of my will.

60.I do not have a long-term commitment to my estranged wife and I do not provide emotional support or companionship to her.  Neither does she treat me the same.

61.I do not consider my estranged wife and I as a couple and we do not hold ourselves out as a couple.

62.My estranged wife and I do not have a sexual relationship.

63.My estranged wife and are (sic) financially independent.

64.My estranged wife and I live independent lives domestically and otherwise and we do not share household tasks.

65.My estranged wife and I socialise separately and apart from attending family events we do not attend social functions together.

66.Family and friends of my estranged wife and I consider us to be separated.

67.My estranged wife and I do not pool our finances for the benefit of each other.” (annexures omitted) (Exhibit R1)

11.     In his oral evidence-in-chief Mr Mlynarczyk amended para 27(a) of his statement of evidence by stating that the sum of $11,600 referred to therein was not the subject of a bank cheque but was in fact transferred from the loan account to a credit card account.  He confirmed that, subject to that amendment, the contents of his statement of evidence are true and correct.

12.     Mr Mlynarczyk also gave the following evidence-in-chief:

·     when he and Ms Mlynarczyk separated in 1994, for the first year he lived on his own (in their house in Gosnells) and then their daughter (Kasia) lived with him while Ms Mlynarczyk continued to live with their 2 sons (Mark and Michael) in Victoria Park;

·     when he and Ms Mlynarczyk agreed to get back together in 1996, Ms Mlynarczyk returned to live with him in their house in Gosnells and they decided to carry out some renovations to the house, namely, renovating the whole kitchen, and laying terracotta tiles throughout the house, and they took out a loan of $20,000 all of which went on those renovations;

·     their reconciliation did not work, they were still fighting and quarrelling, and after a few months they decided that they would each live their own life;

·     he then moved out of the marital bedroom into a bedroom formerly used by one of their sons, she stayed in the marital bedroom, and they decided to live in the same house but run their separate lives;

·     at that time they were both working, and she cooked and washed for herself, and he did the same for himself;

·     while he was working, he made the mortgage payments on their house, and he also paid the electricity bills and all the other bills;

·     when he stopped working in 2000, she started to make the mortgage payments and to pay the electricity account and other accounts;

·     he received sickness benefit a few months after he stopped working and, from that time, they paid the accounts (other than the mortgage) on a “half-half” basis, but she continued to make the mortgage payments until the mortgage was paid off;

·     from 1996 until the present time, they have each bought their own food and done their own cooking, and they have not shared anything;

·     their living arrangements in their house in Gosnells are as follows:

-she uses the main bedroom;

-he sleeps in another bedroom and uses a third bedroom as a computer room;

-a fourth bedroom is used by their grandson when he stays with them;

-she uses the lounge room and , when his friends visit, he entertains them in the computer room or, if she is not at home, in the lounge room;

-they use the kitchen separately for their own cooking;

-they use the bathroom separately when each of them needs to do so;

-he uses the garage for his car and also for doing work on the car, sometimes with his friends or his sons, and she parks her car in another driveway.

13.     Mr Mlynarczyk was referred to National Australia Bank statements in respect of a “National FlexiAccount Tailored Home Loan” account in the joint names of himself and Ms Mlynarczyk, and was asked about a transfer of $20,749.70 into that account on 17 January 2001.  He said that this was money to pay for Ms Mlynarczyk’s car and also for some painting that she wanted to be done.  He explained that he and his son, Michael, had previously gone to an auction where they purchased 2 cars – a Commodore for Ms Mlynarczyk and a Festiva for his daughter, Kasia – and he paid the purchase price of $10,000 for the cars with his credit card.  He added that he “must have bought something else because they gave [him] back $11,600” which he used to pay off his credit card.

14.     Mr Mlynarczyk was also asked about withdrawals from that account on 25 January 2001 ($1,700), 15 February 2001 ($1,700) and 12 March 2001 $1,100), and he explained that he must have withdrawn that money to buy parts for Ms Mlynarczyk’s Commodore on which his son was doing some work.  He added that he “had to show them the receipts before they gave [him] back the money”.

15.     Mr Mlynarczyk said that he could not remember who was using this account at that time, but that it would have been either himself or Ms Mlynarczyk.  Asked whether they both used the account at the same time, he said that the only time they used the account together was when they took out the loan of $20,000 for home renovations in 1996.

16.     Mr Mlynarczyk said that he had returned to Poland on 3 occasions, namely, in 1988 when his mother died, in 1989 with his son, and in 1997 and 1998 with Ms Mlynarczyk.  He said that on the last occasion he went to see his family and a friend picked him up at the airport and took him to Lodz, whereas Ms Mlynarczyk went to see her family and her brother-in-law picked her up at the airport and took her to Zychlin near Kutno.  He said that they were in Poland for 6 weeks and that the only times they were together during that period was when they were in the aeroplane and at the airport.

17.     Mr Mlynarczyk said that his grandson likes to stay at their house on weekends and during school holidays, and that he and his grandson go out together.  As regards meals, he said that if his grandson likes what he is cooking, he will eat with him; otherwise Ms Mlynarczyk will cook for their grandson, but that neither he nor Ms Mlynarczyk cooks for the other when their grandson is staying with them.

18.     Mr Mlynarczyk confirmed that Ms Mlynarczyk had purchased a home unit as an investment in 2002 or 2003.  He said that she had told him that, as soon as he paid to her half the value of their Gosnells house, she would leave and go and live in the home unit, and he had told her that he would do so if he won Lotto or became healthy and returned to work, otherwise he could not afford to pay her out.

19.     Mr Mlynarczyk said that he and Ms Mlynarczyk visit their children but that they each travel in their own car, but that, if he wanted to have a few drinks there, the children would ask her to drive him home and she would do so.

20.     Mr Mlynarczyk was referred to a National Australia Bank statement regarding their joint “National FlexiAccount Tailored Home Loan” account, and, in particular, to a reference to a loan of $9,875 on 20 June 2003.  He said that Ms Mlynarczyk changed her car and that she must have taken out that loan for another car.  He said that Ms Mlynarczyk made the repayments in respect of that loan and that he did not make any repayments.

21.     Mr Mlynarczyk confirmed that in September 2006 the title to the Gosnells property owned and occupied by him and Ms Mlynarczyk was changed from a joint tenancy to a tenancy in common.  He said that the reason for making that change was that he did not want Ms Mlynarczyk “to have anything to do with [his] half of the house”.  He added that Ms Mlynarczyk would then have her half and he would have his half and they would then receive separate accounts in respect of their half of the house.

22.     Mr Mlynarczyk also confirmed that in September 2006 he and Ms Mlynarczyk had each made a will leaving all their property to their children.  Asked why he had made a will in 2006 and not earlier, he responded:

“Well, it didn’t occur to me to make a will before but we talked about it and we said we will give it to the children.”

23.     Mr Mlynarczyk confirmed that Ms Mlynarczyk suffered a shoulder injury about 2 years ago.  He said that their daughter would visit her when she needed help, but that he did not look after her.  He added that she was unable to drive for a while and that during that period their daughter or their daughter-in-law would drive her where she needed to go.  Asked whether he provides any emotional support or companionship to Ms Mlynarczyk, he said that she gives none to him and he gives none to her.  He added:

“We don’t help each other very much, we just live in the – under the same roof.”

24.     In cross-examination, Mr Mlynarczyk gave the following evidence:

·     he and Ms Mlynarczyk still live in their house in Gosnells;

·     Ms Mlynarczyk tells him “quite often” that she will move out as long as he can pay her out;

·     he and Ms Mlynarczyk last quarrelled a few months ago – their quarrels are about “nothing really” – “she just likes to talk”.

25.     Mr Mlynarczyk was referred to the claim form for DSP which he completed in July 2002 (T8), and he was questioned in relation to certain parts of the information which he provided in that form.

26.     It was put to Mr Mlynarczyk that he had answered “No” to the question: “Have you ever claimed a social security payment from Centrelink?”, but that Commonwealth Bank statements in respect of an account in his name indicated that he had been receiving fortnightly social security payments from 7 August 2001 and that those payments were ongoing at the time when he signed the form.  He responded that he may have misunderstood the question or mistakenly ticked the “No” box instead of the “Yes” box in the form.

27.     It was put to Mr Mlynarczyk that, in answer to the question: “Do you have any bank, building society or credit union accounts?”, he had specified only a mortgage account held jointly by him and Ms Mlynarczyk with National Australia Bank.  When asked whether he and Ms Mlynarczyk held any other joint account at that time, he responded in the negative and added that he held a separate account with the Commonwealth Bank and she held a separate account with National Australia Bank.  He was then referred to National Australia Bank statements in respect of a “National FlexiAccount Tailored Home Loan” account in the joint names of him and Ms Mlynarczyk which was still open at that time, and he responded that he had used that account “a long time ago” and that he thought that it had been closed.  It was put to him that, in the period from February 2001 to May 2001, those bank statements recorded various transactions at “Southern River Paint”, hardware shops and liquor shops, and he responded that it was Ms Mlynarczyk’s money in that account and that he only used that account when she requested him to use it, and that he never took any money out of that account without her knowledge or approval.  He added that he never used the joint account for his own use or benefit.

28.     Mr Mlynarczyk was referred to the Centrelink “Assessment of Living Arrangements – Separated under one roof” form completed by him in February 2004 (T20), in which, in answer to the question: “How long do you intend to share accommodation?”, he responded:

“As soon as I get a rental from Homeswest.  I’ve put in my application last year”. 

He confirmed that he had been offered a house in Balga by Homeswest but  that he rejected that offer because he did not want to sell the Gosnells property.  He added that he was “upset” with Ms Mlynarczyk when he was filling out the form and that he had later changed his mind and decided not to move out of the Gosnells house.  He further added that he does not want to sell the house because he has his hobbies and other interests there.  He described his relationship with Ms Mlynarczyk since 1996 as “very unhappy … not good at all”.

29.     Mr Mlynarczyk was next referred to a statement of benefits paid on a HBF family health insurance policy in the name of Ms Mlynarczyk in the period from 8 February 1995 to 27 April 2007 (Exhibit A12).  In that statement it is recorded that benefits were paid in respect of various dental and optical services received by Mr Mlynarczyk in the period 1995-2004 and in respect of various psychological services received by him in 2005.  Mr Mlynarczyk said that the psychological treatment he received was Ms Mlynarczyk’s “fault” and so she paid for it, but that he reimbursed her every other time be made a claim on her policy.  Asked to explain the absence of any reference to this matter in his statement of evidence, he responded that he had just recalled it.

30.     Mr Mlynarczyk confirmed that he and Ms Mlynarczyk had travelled together to Poland, and return, in 1998.  He said that the duration of the flight to Poland was 24 hours and that they sat together in the aeroplane and talked to each other.

Ms Mlynarczyk

31.     The contents of Ms Mlynarczyk’s signed statement of evidence, dated 10 November 2006, are as follows:

“…

2.        In 1985 (sic) my estranged husband and I came to Australia from Poland.

3.In Poland I had worked as a dressmaker.  Because of the children I did this work at home.  My estranged husband worked as a car mechanic and never had any problems in obtaining work.  At no time was he ever unemployed.

4.We came to Australia because of the bad economic, political and social situation in Poland.  In Australia it was hard at first, because we did not speak English and everything was very different.

5.In 1985 I started work as a packer/operator at a pharmacy manufacturer Delta West (later known as Frizer (sic)) in Bentley.  I have been working there ever since.

6.At first I worked part-time but by 1987 I was working full-time.

7.In 2001 my estranged husband was in hospital because of heart problems.  He was there for a few days.  I did not go to see him, as I was not interested in his health.

8.Currently I am not working and I am receiving workers’ compensation because of a work-related shoulder injury in 2005.

9.In January 2006 had (sic) an operation on my shoulder.  This has eased the pain in my shoulder but I do not believe that I will be able to return to my employment because of the nature of the injury.

10.When I had the operation I was in hospital for 4 days.  My estranged husband did not take me to or from the hospital and he did not visit me there.  I had not expected him to do this and was more than happy for him not to do this, as I had no interest in seeing him.

11.When I came back from hospital, my husband did not provide me with any assistance.  However, I told him that he had to keep the house clean as I was not physically capable of doing this.  He did this for about one month, until I was able to do more of the domestic duties.  As I am right-handed and it was my left shoulder that I had injured, I did not have too many problems in looking after myself.

12.I have a lawyer who is acting for me in relation to my claim against my employer.  I understand that my employer has offered to settle my claim by agreeing to pay me 75% of my wages up until I turn 65, providing I have a certificate from my doctor every month confirming that I am not fit enough to return to my work. I have not decided yet whether or not I will accept this offer.

13.I will not discuss this business with my husband.  It is my problem, not his.  I have talked to my children about it as I want to have their opinions in relation to what I should do.

The breakdown of my marriage

14.My estranged husband and I had been having problems with our relationship shortly after we came to Australia.  The problems became worse when I started work in 1985.

15.The character of our relationship seemed to change.  We were doing things differently and we were interested in different things.

16.In 1994 I left my estranged husband when I moved out of our house and went to live with my sons in a house they were renting in Victoria Park.  My daughter, Kasia Mlynarczyk, came with me.  However, a few weeks later Kasia returned to live with my estranged husband.  I stayed with my sons for about 18 months.  Then daughter (sic) persuaded me to go back to my estranged husband and to attempt a reconciliation.

17.At that stage I had had enough of my estranged husband and I could no longer handle the way that he lived.

18.My estranged husband has a large social network in the Polish community and he likes seeing his friends.

19.Before I left the house, I had been using my wages for our day-to-day living and my estranged husband paid the mortgage repayments.

20.When I left we did not discuss whether he would continue to pay the mortgage repayments but because he was living in the house I presumed that he would.

21.I did not speak to my estranged husband during this time unless necessary.  If I did have to speak to him I would not go and see him but would talk to him over the telephone.

22.It was not long after I returned to live with my estranged husband that we both realised that it was not going to work. We had just grown too far apart.  Kasia was living with us in the house.

23.When the relationship ended again, I wanted to sell the house but my estranged husband was not prepared to do this.

24.I had a lot of discussions with him about this, but he was adamant that he would not sell the family home.  After a while we rarely ever talked about it as I could see that there really was no point.

Current living arrangements

25.Living in the same house with my estranged husband is very difficult and has become worse over the years.  For at least the last 5 years our relationship has been terrible and I have hated having to live in the same house with him.

26.We have our own bedrooms and we do our own shopping and cooking.  We each have a portion of the pantry and the fridge for our goods.  We cook and eat at different times and we never stay in the same room as each other if we can help it.

27.He spends a lot of time in the garage.  He has his computer in his bedroom.  He has two rooms in the house, one of which is his bedroom and the other is basically a study.

28.I have my bedroom.  Previously our grandson, Monroe Mlynarczyk, often with (sic) us and he had the other bedroom, which is next to mine.

29.I will watch the television in the lounge, but if my estranged husband comes in to watch it, I go to my bedroom where I have my own television.

30.The only rooms that we share are the kitchen, bathroom and toilet.  As there is only one of each of these rooms there is nothing we can do about that.  However, we make sure that we are never in any of these rooms at the same time.

31.We have no daily conversations and only talk to each other if necessary.  For example, when our grandson is with us we might have to talk about who will be doing what with him.

32.Other things that we have to talk about are our financial matters such as times when my estranged husband cannot afford to pay for what it is that he is required to pay.

33.In relation to cleaning the house, sometimes I do this and other times I will tell my estranged husband what to do.

34.When my grandson Monroe stays with us he often plays in his bedroom but he also mixes with either my estranged husband or I.  Even when my grandson is with us, my estranged husband and I do not stay in the same room.  If my grandson sleeps overnight or stays for dinner or any other meal, I will cook for him.

35.Six (6) months ago my daughter Kasia moved to Mount Hawthorn to live with her de facto.  Prior to this he (sic) was living nearby us and we were seeing Monroe almost daily.  He usually came to our house after school.  Now he does not come to our house as often as he did before.

26.Monroe does not really understand the situation between my estranged husband and I.  We do not want to tell him about this.  What we have told him is that we like doing separate things.  We tell him that this is why we do not see much of each other.  I have also told him that his grandfather snores so that is why we do not share the same bedroom.  We do not want to upset our grandson by telling him what the situation is, and it is also too hard to explain it.

37.All of our children and their partners are aware of the breakdown of the relationship between my estranged husband and I and they have become used to it.  However, if we have a family gathering in our house the atmosphere is quite difficult.  Even then I will not cook for him and he will often do things such as having a barbecue.  When this happens he stays outside most of the time and I spend most of my time inside.  Our children will come in and talk to me as well as going out and talking to their father.  As our grandson is usually present we try to make things look as normal as possible.

38.When we have family gatherings at our children’s homes we will both go but we do not go together.  I generally make sure that I go earlier than my estranged husband and he generally stays longer than I do.  I find these gatherings difficult and I am never really comfortable, which (sic).

39.My estranged husband likes going to Polish community gatherings.  As I am not really into that sort of thing I do not attend these.  I do have Polish friends but I see them and my other friends at their homes.  Alternatively we will go out together.  They never come to my house as it is too difficult to relax, and I feel uncomfortable, as I do not know whether my estranged husband will be there or not.

40.I do not wear my wedding ring.  I did not talk to my estranged husband about this and I do not know if he has noticed it or not.  I know that he has had his ring off for some time.

41.I cannot remember exactly when but at sometime I did say something to my estranged husband about us getting a divorce.  He said that you have to pay for this and therefore he was not interested in doing it.  It did not really worry me as I do not want to get married again.  In relation to other people thinking that we are married, everybody that either my estranged husband or I know well, is aware of the situation and it does not really matter what other people know about it.

42.Dr Zawadzki who is our family doctor is aware of our situation.  We have been attending upon him for the last 20 years or so.  I do not see him very often, because I am rarely sick.  I see another doctor (the company doctor) about my shoulder.

43.My estranged husband has more medical problems than I do, so I presume he would see Dr Zawadzki more than I.

The financial relationship of my estranged husband and I

46.In 1996 my estranged husband and I borrowed $20,000 from the bank for installation of a new kitchen in the house and to have the house repainted.  The mortgage on the house has now been repaid.  It was repaid about 2 months ago.  As my estranged husband was not able to work, I was making the mortgage payments on the house.  I was paying about $600 per fortnight for the mortgage.

47.Initially, when my estranged husband stopped working, he helped with these payments but when he could no longer afford to do this I had to make the full payments.

48.My estranged husband usually pays for the electricity, gas, water and telephone accounts.  If he cannot afford to pay a particular account he tells me and I have to pay it.  Since Centrelink reduced his disability pension he is sometimes unable to pay as much as he did before and I had to make the payments.

49.In the two months that he did not receive Centrelink payments, I had to pay for all of the accounts that he used to pay for, as well as making the mortgage repayments.  I was really angry about that and I said to him ‘why should I have to do this when I just want to sell the house?’.

50.In January 2001 I decided to buy 2 cars.  My son Michael was a panel beater.  The plan was that he would recondition and repair both cars.  I would keep one for my own use and sell the other to pay a substantial part of the purchase price of my vehicle.

51.I told my estranged husband what I wanted to do and informed him that I wanted to borrow $20,000 from the bank.  The bank had told me that I would need to secure the loan against the title to the property.  My estranged husband agreed to a mortgage to the bank.

52.On 17 January 2001 the bank opened up a loan account for my estranged husband and I.  My estranged husband has accessed the loan account 5 times:

(a)On 23 January 2001, he made a cash withdrawal for (sic) $900 and had a bank cheque made for $11,600;

(b)On 25 January 2001, he made a cash withdrawal for (sic) $1,700;

(c)On 15 February 2001, he made a cash withdrawal of $1,700;

(d)On 12 March 2001, he made a cash withdrawal of $1,000;

(e)On 12 December 2001, he wrote a ‘not negotiable’ cheque for $580.65 payable to the Department of Transport.

53.I asked my estranged husband to withdraw the money stated in paragraph 52(a) to pay the deposit and purchase price for the 2 cars.  In addition my son Michael asked my estranged husband to purchase materials and spare parts for work to be performed on the cars.  These are the withdrawals in paragraphs 52(b), 52(c) and 52(d).  I asked my estranged husband to pay the cheque for $580.65 listed in paragraph 52(e) to the Department of Planning and Infrastructure (sic) for stamp duty and licensing transfers for the 2 cars.

53.On 21 August 2002 I purchased a unit in Kenwick for $120,000.  I did this, as I wanted an investment to help my financial situation in order for me to afford somewhere to live if my estranged husband ever agrees to sell our house.  If we sold the house, I am hoping that my me (sic) to pay off the loan on the unit so that I could live there.

54.To buy the unit I had to borrow money from the bank and the bank required that the loan be secured against the title to our house.  My estranged husband agreed to this, but this was because we thought that it was only my half share of the property that would be affected.

55.Now that my estranged husband and I are aware that we do not each own a specific half share of the property because we are joint tenants, we would like to have the property transferred into our names as tenants in common.

56.One of the main reasons I wish to do this is because I would like to leave my share of the property to our children.  I don’t want my estranged husband to acquire my interest in the house if I predecease him.

57.I have signed a transfer document to effect the change in the interests of the house to tenancy in common.  I am making arrangements to have the transfer dealt with in the Titles Office.  Annexure ‘A’ is a copy of the transfer form I have signed.

58.After I purchased the unit in Kenwick I rented it out.  The rent for the unit was being paid into the loan account for the unit.  When I went to an accountant to do my taxation returns he told me that my wages were being paid into the loan account for the unit.

59. He advised me that I should not have my wages paid into the loan account.  He said it was a bad idea to have my wages and rent from the unit being paid into the same account.  He said that the rent and my wages should be kept separately.  I took his advice and I went to the bank and asked them to keep my wages and the rent for the unit separate.

60.On 10 June 2003 the bank re-opened an old account in the names of my estranged husband and I …  I did not realize that the bank had put my wages into this old account.

61.I realized what the bank had done only earlier this year when this matter was in the Social Security Appeals Tribunal.

62.My son Michael told me that he had seen documents that indicated that my wages were going into a joint account of my estranged husband and I.  When I realized this I went to the bank and closed off the old account … and opened another account in my own name.  My wages are now being paid into this account.

63.On 21 September 2006 I made a will leaving all of my real and personal property to my children.  I have made no provision in my will for my estranged husband.  Annexure ‘B’ is a copy of my will.

64.I know that my estranged husband applied for a Homeswest unit but I did not talk to him about this.  I think it was my daughter who told me about it.  As I did not discuss this with him I do not know why he did this.

65.When nothing was happening I asked him about what he was doing and found out that he had decided that he no longer wanted to move to a Homeswest unit.  I was very angry and upset about this because I thought that this difficult situation we had been living in was going to be brought to an end.

66.If we sold the house I would agree to my husband receiving 50% of the sale money.

67.When my daughter-in-law Joanna Mlynarczyk and I were talking about what should happen with the house, we also discussed my superannuation.

68.I was not really aware about what would happen to this if I died.  My daughter-in-law said that she thought that I could leave it to our children.  I checked this out and when I found that you could do this I signed the necessary documentation so as to do this.”  (annexures omitted) (Exhibit R5)

32.     Ms Mlynarczyk gave the following oral evidence-in-chief:

·     when she returned to live with Mr Mlynarczyk in their Gosnells house in 1996 they tried to make their relationship work and they slept together for a year or more, but they then separated and thereafter he slept in his bedroom and she slept in her bedroom, and they cooked and ate meals separately;

·     up until the time Mr Mlynarczyk stopped working in 2000 he paid the mortgage payments for their Gosnells house and they each paid half of the electricity, gas and telephone bills, but from the time he stopped working she paid the mortgage payments (until the mortgage debt  was fully repaid in 2006), and he paid the electricity, gas and telephone bills;

·     she purchased an investment property in Kenwick in 2002 and Mr Mlynarczyk agreed that their Gosnells property be used as security for a bank loan to finance that purchase;

·     when Mr Mlynarczyk has been in hospital from time to time during the last 7 years, she has not visited him there; nor did he visit her when she was in hospital for a shoulder operation in 2005.

33.     In cross-examination Ms Mlynarczyk gave evidence to the following effect:

·     from early in their marriage she and Mr Mlynarczyk often argued, but they started to have serious arguments after they arrived in Australia;

·     she and Mr Mlynarczyk are very different – he likes to go out and socialise with friends, whereas she prefers to stay at home;

·     Mr Mlynarczyk would sometimes meet people while out drinking and invite them back to their house without telling her, and she would arrive home after work and find them there, and this made her very angry;

·     Mr Mlynarczyk has never shown much physical affection towards her;

·     she worked for the same company for 20 years and had 3 Polish friends at work who had separated from their husbands and whose matrimonial homes had been sold;

·     Mr Mlynarczyk would tell her that she had changed because her friends were encouraging her to separate from him, but that was not true;

·     when the children were teenagers, Mr Mlynarczyk started spending time with other women and not coming home, but she did not care;

·     Mr Mlynarczyk “loves the women” and this made her angry, not because she was jealous, but because of his lack of respect;

·     after she returned to live in the Gosnells house in 1996, Mr Mlynarczyk sometimes did not come home and she did not know where, or with whom, he was, and this was very hurtful to her;

·     in the last few years she has wanted to sell the Gosnells house and she suggested to Mr Mlynarczyk that it would be better if they got a divorce, but he did not want to;

·     she has not sought legal advice about getting a divorce or a property settlement;

·     because she would have to pay for a divorce, and because she is not keen to be married again, there is no point in getting divorced;

·     even though Mr Mlynarczyk recently had a heart attack, she is no more concerned about his health than she would be about the health of any of her friends, and if, for example, he had a crisis in the night and needed urgent transportation to hospital, should would drive him there, but only because he is a “person”.

34.     Ms Mlynarczyk was referred to the National Australia Bank statements in respect of the “National FlexiAccount Tailored Home Loan” account in the joint names of Mr Mlynarczyk and herself.  She was referred, in particular, to transactions in 1999-2001 and she said that Mr Mlynarczyk had been using the account at that time.  She acknowledged, however, that the amount of $20,749.70 had been transferred to that account in January 2001 for the purpose of financing the purchase of 2 cars for her, and that her salary had been paid into that account from October 2004.  She was unable to say where her salary was being deposited before October 2004 and she denied that she had another account.  Asked why, in October 2004, she had arranged for her salary to be paid into an account held by her jointly with Mr Mlynarczyk, she responded that she did not know that his name was on the account.

35.     Ms Mlynarczyk confirmed that in February 2006 she and Mr Mlynarczyk mortgaged their Gosnells property in order to arrange for finance for the purchase of a house by their daughter, Kasia (Exhibit A9).

36.     Ms Mlynarczyk was asked why, if she was in such an unhappy situation living with Mr Mlynarczyk in the Gosnells house, she has not moved into the Kenwick property which she purchased in 2002.  She said that she was worried about what Mr Mlynarczyk would do with the Gosnells house if she was not there and that maybe she would get nothing from that house.  She then said that she will go to the Kenwick property when the current tenancy expires in March 2008.  It was also put to her that she could seek legal advice with a view to forcing the sale of the Gosnells property.  She responded that she had not previously thought about going to see a lawyer and that she just wanted Mr Mlynarczyk to agree to the sale of the house, but that it now looks like she will have to go to a lawyer and “do something” because she had had “enough”.

37.     Ms Mlynarczyk was referred to copies of her income tax returns for the years 1994-2000 (Exhibit A10 and Exhibit A2, pp130-142.  She confirmed that each of those returns had been prepared by the same tax agent.  It was put to her that:

·     in her 1995 return she claimed a spouse rebate of $1,025;

·     in her 1996 return Mr Mlynarczyk is specified as her spouse and she claimed a spouse rebate of $585;

·     in her 1997 return Mr Mlynarczyk is specified as her spouse and she claimed a spouse rebate of $733;

·     in her 1998 return Mr Mlynarczyk is specified as her spouse and she claimed a spouse rebate of $1,186;

·     in her 1999 return Mr Mlynarczyk is specified as her spouse and his tax file number is specified;

·     in her 2000 return Mr Mlynarczyk is specified as her spouse and his tax file number and his taxable income are specified.

Ms Mlynarczyk said that she was unable to explain the abovementioned items in her tax returns and that she was confused.

38.     Ms Mlynarczyk confirmed that she had maintained a family private health insurance policy with HBF and that Mr Mlynarczyk had made claims on that policy, but she said that Mr Mlynarczyk did not use the policy very often.  Ms Mlynarczyk was referred to a HBF statement of benefits paid on that policy in the period from 8 February 1995 to 27 April 2007 which indicated that benefits were paid in respect of 49 services provided to Mr Mlynarczyk in the period from 8 February 1995 to 11 September 2006 (Exhibit A3, pp 8-10; Exhibit A12).  She confirmed that she was surprised by the number of claims which had been made by Mr Mlynarczyk and that she thought that he had been using the policy less often than that.  She said that she should have discontinued the family policy but that she did not think about it and just carried on paying for it.

39.     Ms Mlynarczyk confirmed that there is a family gathering at the Gosnells house every Christmas and that their children and their partners, and their grandson, attend and stay for a meal during the day.  She said that she and Mr Mlynarczyk each prepare food for the meal.

40.     Ms Mlynarczyk was asked about the wills, and the document converting the Gosnells property from a joint tenancy to a tenancy-in-common, which she and Mr Mlynarczyk executed on 21 September 2006.  She said that Mr Mlynarczyk had told her that his lawyer had advised him that they should do this.

41.     Ms Mlynarczyk as asked about the performance of domestic tasks at the Gosnells house.  She said that when Mr Mlynarczyk finishes cooking, he has to clean the kitchen himself, and the same applies to her.  She added that Mr Mlynarczyk has to do the mopping and vacuuming one week, and she has to do it the other week.  She confirmed that she and Mr Mlynarczyk have an arrangement that she does the cleaning one week, and he does it the other week.  She also confirmed that she complains about Mr Mlynarczyk not doing things around the house.

42.     Ms Mlynarczyk confirmed that she and Mr Mlynarczyk travelled together to Poland and back in 1998 and that during the long flights they were seated next to each other and they behaved “like friends”.  She said that when they arrived in Poland his family picked him up, and her family picked her up, at the airport and they did not spend any time together in Poland.

Michael Mlynarczyk

43.     Michael Mlynarczyk (born in December 1972), a son of Mr Mlynarczyk and Ms Mlynarczyk, gave the following evidence:

·     in about 1992 Ms Mlynarczyk left the family home in Gosnells and moved in with him and his older brother, Mark, in Victoria Park, and she stayed with them for about one year;

·     before then Ms Mlynarczyk did all the cooking but Mr Mlynarczyk then started cooking for himself;

·     when he (Michael) was a teenager in the late 1980s, Mr Mlynarczyk occasionally slept on the couch at the Gosnells house;

·     Ms Mlynarczyk moved back to live with Mr Mlynarczyk in the Gosnells house as a result of the efforts of his sister, Kasia, to reconcile them;

·     since 1994 Mr Mlynarczyk and Ms Mlynarczyk have been living separately in the Gosnells house – they do their own shopping and cooking, they have separate shelves for their food in the refrigerator, and they have their own separate toilet paper (which he described as “ridiculous”);

·     a few years ago he and Mark met with Mr Mlynarczyk and Ms Mlynarczyk at the Gosnells house so that they could gain a better understanding of the situation between them – at the meeting, Mr Mlynarczyk said that he could not afford to buy Ms Mlynarczyk out, and Ms Mlynarczyk said that, if she left, Mr Mlynarczyk would “trash” the house and they would be financially worse off;

·     Mr Mlynarczyk will not sell the house because he has got his garage and everything there;

·     Mr Mlynarczyk’s social life has always been an “issue” for Ms Mlynarczyk – his drinking and socialising with his Polish friends, both male and female;

·     Mr Mlynarczyk and Ms Mlynarczyk are very unhappy and bitter towards each other – Mr Mlynarczyk is more bitter and less conciliatory about the situation than Ms Mlynarczyk;

·     at a recent birthday party at his house, Mr Mlynarczyk and Ms Mlynarczyk arrived separately, sat at opposite ends of the dining table, and did not communicate with each other;

·     Mr Mlynarczyk used to visit him in Kenwick when he lived there in  1999-2002 and occasionally when Mr Mlynarczyk got drunk he telephoned Ms Mlynarczyk to come and pick him up, although this did not happen very often;

·     Ms Mlynarczyk has expressed concern about Mr Mlynarczyk’s health, especially since his recent heart attack, but Mr Mlynarczyk has not really expressed any interest in Ms Mlynarczyk’s health.

Kasia Mlynarczyk

44.     Kasia Mlynarczyk (born in April 1975), the daughter of Mr Mlynarczyk and Ms Mlynarczyk, gave the following evidence:

·     Mr Mlynarczyk and Ms Mlynarczyk separated in 1992 when Ms Mlynarczyk moved out of the family home in Gosnells;

·     in 1994 Mr Mlynarczyk and Ms Mlynarczyk reunited for a couple of months because of her efforts but they did not get along as a married couple during that time, there was no love between them and they argued about everything;

·     after only a couple of months of reuniting, they started living their own separate lives, they moved into separate bedrooms, and they did their own shopping and cooking at different times;

·     Mr Mlynarczyk would usually go out when Ms Mlynarczyk returned home from work and would return late at night or sometimes stay out;

·     they did not go to church together or socialize with the same friends;

·     she (Kasia) remained with Mr Mlynarczyk in the Gosnells house while she was still studying until 1994, and she then moved to Melbourne, Sydney and Adelaide from 1995 to 2001 before returning (with her son, Monroe, who was born in 1998) to live in Perth in November 2001;

·     when she returned to Perth in November 2001 she and Monroe lived with Mr Mlynarczyk and Ms Mlynarczyk in the Gosnells house for about 6 months until April 2002;

·     she recalled that, when she was a child, Mr Mlynarczyk and Ms Mlynarczyk argued and shouted at each other and were never very affectionate towards each other.

Robert Dominiak

45.     The contents of Mr Dominak’s signed statement of evidence, dated 19 August 2006, are as follows:

“ 1.      I have known Grzegorz and Grazyna Mlynarczyk for approximately 10 years.

2.I am 36 years old and I met Grzegorz through my friendship with his sons.  I see both Grzegorz and his sons quite frequently.  I pretty much know most of the Mlynarczyk family.

3.I see Grzegorz about twice a fortnight and have had dinner at his place on a number of occasions.  At those times he has always cooked the meal himself.

4.At times Grazyna has been in the house, however, she has never eaten with us.  Most of the time that I am visiting Grzegorz we stay in the garage, which is basically his room.

5.Neither Grzegorz or his wife have any real contact with each other and they do not talk to one another.  However, sometimes I have been there when she has ‘grumbled’ to him, saying things like he should be getting out of the garage to do things that need to be done around the house.

6.I have never seen them go out together.  Grzegorz has told me about his situation with his wife.  She however, has never talked to me about it.  This does not surprise me as although I will chat with her sometimes, when I ring up to speak to Grzegorz, it is Grzegorz who is my friend and not his wife.” (Exhibit R2)

46.     In his oral evidence Mr Dominiak said that, when he visits Mr Mlynarczyk, Ms Mlynarczyk is usually not there.  He said, however, that, if Ms Mlynarczyk is there when he is visiting Mr Mlynarczyk, sometimes she joins in the conversation with him and Mr Mlynarczyk and, when she does so, it is amicable and friendly.  He said that Mr Mlynarczyk had told him that Ms Mlynarczyk “nags” him about things, and that he lead in fact heard Ms Mlynarczyk nagging Mr Mlynarczyk about various things such as his untidiness, leaving things lying around the house and the garage, the house needing painting, and getting rid of his old cars that were parked in front of the house.

47.     Mr Dominiak said that, in his assessment, Mr Mlynarczyk and Ms Mlynarczyk lead separate lives and do not function as a married couple because they have separate bedrooms, do not eat together, and do not go out together.

Stanislaw Michor

48.     Mr Michor gave the following evidence:

·     he has known Mr Mlynarczyk for quite a while but he got to know him well in 2001;

·     they visit each other at their respective houses – Mr Mlynarczyk visits him more often than he visits Mr Mlynarczyk;

·     when he has visited Mr Mlynarczyk he has sometimes seen him hanging out washing, cooking or making breakfast for himself;

·     he sometimes saw Ms Mlynarczyk in the house but he never saw Mr Mlynarczyk and Ms Mlynarczyk together or in “mutual situations” – if she was in the kitchen, she would make herself a cup of tea and go to her room;

·     Mr Mlynarczyk had told him “quite a long time ago” that he and his wife were not living together anymore and that they would not be getting back together;

·     Mr Mlynarczyk had also told him that Ms Mlynarczyk had moved out but that their daughter had tried to get them to reconcile, and that, when that did not work, they were living separately in the house;

·     Mr Mlynarczyk had also told him that he and Ms Mlynarczyk did not have any contact at all and that they were like strangers.

Michael Borkowski

49.     Mr Borkowski gave the following evidence:

·     he met Mr Mlynarczyk in about 2002 and they became friends;

·     they have visited each other at their houses but he prefers not to visit Mr Mlynarczyk at his house because of the “situation” there;

·     Mr Mlynarczyk has stayed overnight at his house but he did not call his wife to let her know because “she has her life, I have mine”;

·     Mr Mlynarczyk spends a lot of time in his garage and is not on good terms with his wife, but he tries to keep out of their domestic affairs;

·     Mr Mlynarczyk cooks for himself and makes nice Polish dishes, and he has had some meals at Mr Mlynarczyk’s house;

·     Mr Mlynarczyk has a separate bedroom and a computer room, he and Ms Mlynarczyk keep their own food and drinks in separate parts of the refrigerator, and, as far as he knows, they have their own finances and do not share;

·     Mr Mlynarczyk and his wife do not socialise with friends at their house – he has not been invited to any parties or barbecues there;

·     his assessment of their relationship is that they are 2 separate people living under one roof, and that this is “pretty strange”.

Joanna Mlynarczyk

50.     Joanna Mlynarczyk, the wife of Michael Mlynarczyk and a daughter-in-law of Mr Mlynarczyk and Ms Mlynarczyk, gave oral evidence but it is unnecessary to refer to the contents of that evidence in these reasons.

Additional Material which is in Evidence

51.     In a Centrelink “Assessment of Living Arrangements – Separated under one roof” form signed by Mr Mlynarczyk and dated 4 July 2002 (T10), the following information (inter alia) was provided by Mr Mlynarczyk to Centrelink:

·     the mortgage repayments in respect of the Gosnells property are $800.00 per month, of which he contributes $400.00 per month;

·     he and Ms Mlynarczyk “split the amount” of Council rates and Water Corporation charges;

·     he and Ms Mlynarczyk share payment of the electricity, gas and telephone bills on a “50%-50%” basis;

·     the arrangements for paying for food and housekeeping items are as follows:

“I give my ex-wife money for food or I make my own”;

·     the basis for sharing household tasks is as follows:

“We do what we can.  I help out when she’s at work.”;

·     he and Ms Mlynarczyk separated “7 years ago”;

·     since they separated, their relationship has changed as follows:

“We stay friends”;

·     the extent to which Ms Mlynarczyk would provide care, support or help to him in the below-mentioned circumstances, is as follows:

-illness – “definitely would help out”;

-personal crisis – “not” (sic);

-money matters – “not really”;

-family disputes – “not really, she keep away”.

52.     In a Centrelink “Assessment of Living Arrangements – Separated under one roof” form signed by Ms Mlynarczyk and dated 5 July 2002 (T11), the following information (inter alia) was provided by Ms Mlynarczyk to Centrelink:

·     the mortgage repayments in respect of the Gosnells property are $800.00 per month, of which she contributes $400.00 per month;

·     she and Mr Mlynarczyk pay the Council rates and Water Corporation charges on a “50%-50%” basis;

·     she and Mr Mlynarczyk share payment of the electricity, gas and telephone bills on a “50%-50%” basis;

·     the arrangements for paying for food and housekeeping items are as follows:

“My ex gives me money for food or he cooks sometimes”;

·     the basis for sharing household tasks is as follows:

“We do what each of us can in the day, I work and he helps out when he can around the house”;

·     she and Mr Mlynarczyk separated “7 years ago”;

·     since they separated, their relationship has changed as follows.

“We’ve stayed friends”;

·     the extent to which Mr Mlynarczyk would provide care, support or help to her in the below-mentioned circumstances is as follows;

-illness – “I don’t know”;

-personal crisis – “I don’t think so”;

-money matters – “No”;

-family disputes – “No”.

53.     In a Centrelink “Assessment of Living Arrangements – Separated under one roof” form signed by Mr Mlynarczyk and dated 25 February 2004 (T20), the following information was provided by Mr Mlynarczyk to Centrelink:

·     he intended to share accommodation with Ms Mlynarczyk until he got a rental from Homeswest for which he had put in an application last year;

·     the mortgage repayments in respect of the Gosnells property are $600.00 per month, of which he contributes $300.00 per month;

·     he and Ms Mlynarczyk each pay half of the Council rates and the Water Corporation charges;

·     he and Ms Mlynarczyk each pay half of the electricity, gas and telephone bills;

·     the arrangements for paying for food and housekeeping items are as follows:

“I buy my own food when I eat at home but I eat out and at friends house a lot, and Grazyna cooks and buys food for herself”;

·     the basis for sharing household tasks is as follows:

“I help in the backyard a little not much because of my heart condition I do very little around the house and Grazyna understand and is fine with that”;

·     he and Ms Mlynarczyk separated “5 years ago”;

·     since they separated, their relationship has changed as follows:

“We really don’t get along as a couple anymore.  We just live separate lives but live together because of my situation, at the moment, I hope to be getting a place from Homeswest this year.”;

·     the extent to which Ms Mlynarczyk would provide care, support or help to

him in the below-mentioned circumstances is as follows:

-illness – “None”;

-personal crisis – “None”;

-money matters – “None”;

-family disputes – “None”.

54.     A letter from Dr W Zawadzki, dated 23 June 2004 (T24), states as follows:

“I, Wlodzimierz Zawadzki have known Grzegorz Mlynarczyk for 12 years as his GP doctor.  Grzegorz visits me on regular basis.  I am aware of that Grzegorz is in separation with his wife Grarzyna (sic) Mlynarczyk for a long time.” (sic)

55.     In a Centrelink “Assessment of Living Arrangements – Separated under one roof” form signed by Mr Mlynarczyk and dated 10 December 2005 (T30), the following information was provided by Mr Mlynarczyk to Centrelink:

·     he intended to share accommodation with Ms Mlynarczyk until they “have enough money to pay each other off to buy new separate homes”;

·     the mortgage repayments in respect of the Gosnells property are $1,200.00 per month, of which he contributes $100.00 per month;

·     he and Ms Mlynarczyk share payment of the Council rates, and he pays the Water Corporation charges;

·     he pays the electricity, gas and telephone bills;

·     the arrangements for paying for food and housekeeping items are as follows:

“We buy separate food and whatever we need for ourselves”;

·     the basis for sharing household tasks is as follows:

“We clean after ourselves, we cook for ourselves – everything we do separately”;

·     he and Ms Mlynarczyk separated in “1992”;

·     since they separated, their relationship has changed as follows:

“We sleep separately, we have no sexual relationship, we do not care about each other life (sic) at all”;

·     the extent to which Ms Mlynarczyk would provide care, support or help to him in the below-mentioned circumstances is as follows:

-     illness – “No care is taken”;

-     personal crisis – “As above”;

-     money matters – “As above”;

-     family disputes – “As above”.

56.     Information provided by the Department of Housing and Works to Centrelink on 27 March 2006 indicates that:

·     Mr Mlynarczyk lodged an application for Homeswest housing on 1 September 2003;

·     he was offered accommodation in December 2003 but the offer was not accepted because of the location of the accommodation;

·     his application was withdrawn by Homeswest on 8 September 2004 because he did not reply to a survey sent to him. (T40)

57.     Information provided by HBF Health Funds Inc to Centrelink in April and November 2006 indicates that:

·     from August 1984 to May 1990 Mr Mlynarczyk was the primary member of a family health insurance policy, and the dependants also covered by that policy comprised his “spouse and 3 children”;

·     from 29 November 1994 Ms Mlynarczyk has been the primary member of a family health insurance policy, and the dependant also covered by that policy has been Mr Mlynarczyk (T41, p 393; Exhibit A2, p19).

58.     Fremantle Hospital records include the following documents:

·     records regarding Mr Mlynarczyk’s admission on 16 August 2000 refer to Ms Mlynarczyk as Mr Mlynarczyk’s spouse (wife) and next of kin and the person to contact (Exhibit A2, pp 102, 109);

·     records regarding Mr Mlynarczyk’s admission on 19 December 2001 refer to Ms Mlynarczyk as Mr Mlynarczyk’s spouse and next of kin (Exhibit A2, p 96);

·     records regarding Mr Mlynarczyk’s admission on 14 November 2006 refer to Kasia Mlynarczyk, his daughter, as his next of kin, and indicate that he “lives alone” and will be collected on discharge by Kasia (Exhibit A2, pp 56,74).

59.     A report of Mr I Gilfillan, Cardiothoracic Surgeon, to Dr D Bhullar, Cardiologist, regarding Mr Mlynarczyk, dated 22 November 2006, states (inter alia):

“He lives with his wife.” (Exhibit A4, p51)

Analysis

Has Mr Mlynarczyk, at all material times, been a “member of a couple” for the purposes of the Act?

60. Mr Mlynarczyk has at all material times been, and continues to be, legally married to Ms Mlynarczyk and, accordingly, the question whether he has at all material times been, and continues to be, a “member of a couple” for the purpose of the Act is, in accordance with s 4(2)(a) of the Act, to be answered by determining whether or not he has at all material times been, and is presently, “living separately and apart from [Ms Mlynarczyk] on a permanent or indefinite basis”. In forming an opinion about the relationship between Mr Mlynarczyk and Ms Mlynarczyk for the purposes of s 4(2)(a), the Tribunal is required, by s 4(3), to have regard to all the circumstances of the relationship including, in particular, the matters and factors referred to in paras (a)-(e) of s 4(3). The Tribunal will first consider those matters and factors having regard to the whole of the evidence before it.

Financial aspects

61.     Mr Mlynarczyk and Ms Mlynarczyk have since 1985 and at all material times jointly owned the Gosnells property where they have resided and continue to reside.  They formerly owned that property as joint tenants but, following a Transfer which they executed on 21 September 2006 and which was registered on 30 May 2007 (see annexure “A” to Exhibits R1 and R5, and Exhibit R9), they presently own that property as tenants in common in equal shares.  Ms Mlynarczyk also owns a home unit in Kenwick which she purchased in August 2002 and which is presently leased.

62.     Mr Mlynarczyk and Ms Mlynarczyk have jointly held the following accounts with National Australia Bank:

·     “National FlexiAccount Tailored Home Loan” account which was opened on 21 June 1996 and which was closed on 27 January 2006 (T37);

·     “National Base Variable Rate Home Loan” account which was opened on 17 January 2001 (T42);

·     “National Personal Loan” account which was opened on 9 June 2003 and which was closed on 13 February 2006 (T45).

63.     As regards the “National FlexiAccount Tailored Home Loan” account, the evidence of Mr Mlynarczyk and Ms Mlynarczyk was that they opened that loan account in 1996 when they obtained a loan of $20,000 from National Australia Bank in order to finance renovations to their Gosnells house.  It appears from the evidence before the Tribunal (including bank statements) that:

·     that account was in active use, as evidenced by numerous withdrawals, in the period from December 1999 to February 2000;

·     from March 2000 to January 2001 that account was not being used and a credit balance of $37.16 was maintained in that period;

·     on 17 January 2001 that account was reactivated when $20,749.70 was transferred into that account, which amount was, according to Mr Mlynarczyk’s evidence, used to pay for 2 cars for Ms Mlynarczyk and some painting that Ms Mlynarczyk wanted to be done;

·     that account was thereafter in active use, as evidenced by numerous withdrawals, until May 2001;

·     from June 2001 to June 2003 that account was used very infrequently;

·     on 20 June 2003 $9,875 was transferred to that account from the “National Personal Loan” account which was opened by Mr Mlynarczyk and Ms Mlynarczyk on 9 June 2003, which account was, according to Mr Mlynarczyk’s evidence, used for the purchase of another car for Ms Mlynarczyk;

·     from August 2003 to October 2004 that account was not being used and a credit balance of 5¢ was maintained in that period;

·     that account was reactivated by a deposit of $1,759.55 on 13 October 2004 and from 14 October 2004 Ms Mlynarczyk’s fortnightly salary was paid into that account, and the account was in active use, until the closure of the account on 27 January 2006.

According to the evidence of Mr Mlynarczyk and Ms Mlynarczyk, Mr Mlynarczyk accessed that account on 5 occasions, all of which were in 2001: see paras 27-29 of his statement of evidence (paragraph 10 above) and paras 52-53 of her statement of evidence (paragraph 31 above).  [The Tribunal notes that that account was opened on 21 June 1996, not on 17 January 2001 as stated by them].  Having examined the relevant bank statements and having heard the oral evidence of Mr Mlynarczyk and Ms Mlynarczyk, the Tribunal does not accept that Mr Mlynarczyk accessed that account only on the 5 abovementioned occasions.  The Tribunal is reasonably satisfied that, at least in the periods from December 1999 to February 2000 and from January 2001 to May 2001, that account was frequently used by Mr Mlynarczyk.  The Tribunal regards Mr Mlynarczyk’s evidence that he only used that account when Ms Mlynarczyk requested him to do so, and that he never used that account for his own use or benefit, as implausible and it does not accept that evidence.

64.     As regards the “National Base Variable Rate Home Loan” account, it seems that this account was opened by Mr Mlynarczyk and Ms Mlynarczyk on 17 January 2001 by way of refinancing the mortgage over their Gosnells property and coinciding with their obtaining a loan of $20,000 for the purchase of 2 cars by Ms Mlynarczyk.  The Tribunal accepts the evidence of Mr Mlynarczyk and Ms Mlynarczyk that, after Mr Mlynarczyk ceased working in about 2000, Ms Mlynarczyk paid all of the mortgage repayments until the mortgage loan was fully repaid in or about August/September 2006 (although, the Tribunal notes, Mr Mlynarczyk and Ms Mlynarczyk informed Centrelink in July 2002 that Mr Mlynarczyk was paying 50% of the mortgage payments, and Mr Mlynarczyk provided the same information to Centrelink in February 2004 – see paragraphs 51-53 above).

65.     As regards the “National Personal Loan” account which was opened by Mr Mlynarczyk and Ms Mlynarczyk on 9 June 2003, the Tribunal accepts Mr Mlynarczyk’s evidence that this account was opened for the purpose of obtaining loan finance for the purchase of another car by Ms Mlynarczyk and that all repayments were made by Ms Mlynarczyk until the loan was fully repaid and the account closed on 13 February 2006.

66.     Details of bank accounts presently held individually by Mr Mlynarczyk and Ms Mlynarczyk, about which there is evidence before the Tribunal, are as follows:

·     Commonwealth Bank of Australia “Streamline Account” in the name of Mr Mlynarczyk, which was opened on 21 December 1998 (T39);

·     National Australia Bank Visa Card account in the name of Mr Mlynarczyk which was opened on 19 June 1996 (T43);

·     National Australia Bank “National Smart Direct” account in the name of Ms Mlynarczyk, which was opened on 22 December 2005 (Exhibit R6);

·     National Australia Bank “National FlexiPlus Mortgage–Choice Package” account in the name of Ms Mlynarczyk which was opened on 30 July 2002 (Exhibit R7).

67.     The Tribunal notes that in February 2006 Mr Mlynarczyk and Ms Mlynarczyk jointly mortgaged their Gosnells property to the Commonwealth Bank of Australia in order to provide security for a loan provided by that Bank to their daughter, Kasia, for the purpose of purchasing a house (see Exhibits A9 and R9, and paragraph 35 above).

68.     As regards the payment of outgoings and other expenses in relation to the Gosnells property:

·     according to Mr Mlynarczyk’s oral evidence, while he was working he paid the electricity bills and all the other bills, but when he stopped working in 2000 Ms Mlynarczyk commenced paying the electricity account and the other accounts;

·     according to para 48 of Ms Mlynarczyk’s statement of evidence, Mr Mlynarczyk “usually pays for the electricity, gas, water and telephone accounts”, and in her oral evidence she stated that up until Mr Mlynarczyk stopped working in 2000 they each paid half of the electricity, gas and telephone bills, but that since then she has paid the mortgage payments and he has paid the electricity, gas and telephone bills.

The Tribunal notes, however, that:

·     in July 2002 Mr Mlynarczyk and Ms Mlynarczyk each informed Centrelink that they shared payment of the Council rates, water charges and electricity, gas and telephone bills on a 50%-50% basis;

·     in February 2004 the same information was provided to Centrelink by Mr Mlynarczyk;

·     in December 2005 Mr Mlynarczyk informed Centrelink that he and Ms Mlynarczyk shared payment of the Council rates and that he paid the water charges and the electricity, gas and telephone bills (see paragraphs 51-53, 55 above).

69.     As regards the payment of other day-to-day household expenses, the evidence before the Tribunal is somewhat lacking in detail but the Tribunal is prepared to accept that, at all material times, Mr Mlynarczyk and Ms Mlynarczyk have each paid for their own food and housekeeping items.

70.     The Tribunal also notes that:

·     Ms Mlynarczyk was specified as Mr Mlynarczyk’s “spouse” (married or de facto) in his income tax returns for the years 1996, 1997, 1999 and 2000 (Exhibit A13; Exhibit A2, pp 116-128);

·     Mr Mlynarczyk was specified as Ms Mlynarczyk’s “spouse” (married or de facto) in her income tax returns for the years 1996, 1997, 1998, 1999 and 2000, and a spouse rebate was claimed by her in the years 1996, 1997, 1998 and 2000 (Exhibit A10; Exhibit A2, pp 130-142);

·     from 1994 Ms Mlynarczyk has maintained a HBF family health insurance policy and Mr Mlynarczyk has, since the commencement of that policy been covered as a dependant and entitled to make claims on that policy, and he has in fact done so on 49 occasions in the period from February 1995 to September 2006 (T41, p 393; Exhibit A2, p 19; Exhibit A3, pp 8-10);

·     Mr Mlynarczyk and Ms Mlynarczyk each made a will (for the first time) on 21 September 2006 and neither is nominated as a beneficiary in the other’s will (Annexure “B” to each of Exhibit R1 and Exhibit R5);

·     in 2006 Ms Mlynarczyk nominated her children as the beneficiaries of her superannuation; Mr Mlynarczyk does not have any superannuation.

Nature of the household

71.     Mr Mlynarczyk and Ms Mlynarczyk have, at all material times, cohabited in their Gosnells house.  Their living and housekeeping arrangements, according to their evidence, have been, and continue to be, as follows:

·     Ms Mlynarczyk exclusively uses, and sleeps in, the main bedroom; Mr Mlynarczyk exclusively sleeps in another bedroom and uses a third bedroom as a computer room;

·     they share the use of the living room, the kitchen and the bathroom but they use those rooms separately at different times;

·     Mr Mlynarczyk exclusively uses the garage;

·     they have their own food items, which they store separately, they cook their own meals separately, and they eat separately and do not share meals;

·     they each clean the kitchen after they have finished cooking, and, as regards general cleaning of the house, the arrangement between them is that they each do it in alternate weeks.

72.     As regards the provision of care and support to children, the only relevant child is the grandson of Mr Mlynarczyk and Ms Mlynarczyk who has regularly stayed with them on weekends and in school holidays.  According to their evidence, they did not look after him or spend time with him jointly during his visits, but instead did so individually and separately.

Social aspects

73.     According to the evidence of Mr Mlynarczyk and Ms Mlynarczyk:

·     they have, at all material times, lived separate lives, albeit under the same roof, and have only interacted socially when it was necessary to do so, for example, to discuss financial matters or the arrangements to be followed during their grandson’s visits;

·     since the failure of their attempted reconciliation in 1996 they have regarded themselves as separated and they have ceased wearing their wedding rings and have not held themselves out as a married couple;

·     their children and friends regard them as separated;

·     at family gatherings held on special occasions such as Christmas and children’s birthdays, they do not interact with each other, and when those gatherings are held at their children’s homes they travel separately and arrive and depart at different times;

·     they entertain and visit their own friends separately and they do not otherwise engage in social activities together.

That evidence was generally corroborated by the other witnesses (being family members, and friends of Mr Mlynarczyk) who gave evidence (see paragraphs 43-49 above).  Also in evidence is a letter from Dr W Zawadzki, dated 23 June 2004, to the effect that he has been Mr Mlynarczyk’s general practitioner for 12 years and that he is aware that Mr Mlynarczyk has been separated from his wife “for a long time” (see paragraph 54 above).

74.     There is, on the other hand, some evidence before the Tribunal indicating that Mr Mlynarczyk and/or Ms Mlynarczyk have held themselves out as married when dealing with certain institutions or third parties, namely;

·     when they opened joint accounts with National Australia Bank on 21 June 1996 and 17 January 2001 (T37, p223; T42, p396);

·     for the purpose of Ms Mlynarczyk’s HBF family health insurance policy which was commenced on 29 November 1994 and was, according to her evidence, still current at the time of the hearing (T41, p393; Exhibit A2, p19);

·     when Mr Mlynarczyk was admitted to Fremantle Hospital on 16 August 2000 and 19 December 2001 (Exhibit A2, pp96, 102, 109);

·     Mr I Gilfillan, Cardiothoracic Surgeon, examined Mr Mlynarczyk on 22 November 2006 and noted in his report of that date that Mr Mlynarczyk “lives with his wife” (Exhibit A2, p51).

Sexual relationship

75.     The evidence of Mr Mlynarczyk and Ms Mlynarczyk was that there has been no sexual relationship between them since their unsuccessful attempt at a reconciliation in 1996.  There is no evidence before the Tribunal which contradicts, or is inconsistent with, their evidence in that respect (except as regards the year of the attempted reconciliation – see paragraph 80 below).

Nature of mutual commitment

76.     Mr Mlynarczyk and Ms Mlynarczyk have been legally married for 38 years but, according to their evidence, they have been separated, although living under the same roof, since 1996, and from that time onwards:

·     they have had no commitment to each other;

·     they have provided no emotional support or companionship to each other;

·     they have not regarded their relationship as that of a married couple;

·     they have considered that their post-1996 relationship is likely to continue indefinitely.

77.     Ms Mlynarczyk also gave evidence that neither had visited the other in hospital during the last 7 years and that, despite Mr Mlynarczyk’s recent heart attack, she is no more concerned about his health than that of any of her friends although, if he had a crisis during the night and required urgent transportation to hospital, she would drive him there.

78.     The Tribunal, on the other hand, notes:

·     in August 2002 Mr Mlynarczyk and Ms Mlynarczyk informed Centrelink that, despite their separation, they remained friends, and that Ms Mlynarczyk would help Mr Mlynarczyk in the event of illness (T10, pp108, 109; T11, p116; T15);

·     the evidence of Michael Mlynarczyk that Ms Mlynarczyk had expressed concern about Mr Mlynarczyk’s health, especially since his recent heart attack, although Mr Mlynarczyk had not expressed any interest in Ms Mlynarczyk’s health;

·     since at least 1996 neither Mr Mlynarczyk nor Ms Mlynarczyk has moved out of the Gosnells house despite the fact that Ms Mlynarczyk has owned a home unit in Kenwick since August 2002 and the fact that Mr Mlynarczyk was offered Homeswest accommodation in December 2003;

·     there is no evidence before the Tribunal to the effect that either Mr Mlynarczyk or Ms Mlynarczyk has established a close personal relationship with any other member of the opposite sex;

·     neither Mr Mlynarczyk nor Ms Mlynarczyk has at any time taken any action to divorce, or effect a legal separation from, the other, or to obtain a property settlement.

Has Mr Mlynarczyk, at all material times, been living separately and apart from Ms Mlynarczyk on a permanent or indefinite basis?

79. Having considered the whole of the evidence relating to the circumstances of the interpersonal relationship of Mr Mlynarczyk and Ms Mlynarczyk, including, in particular, the matters and factors referred to in s 4(3) of the Act, it is clear that some of those circumstances, matters and factors militate in favour of a finding that Mr Mlynarczyk has, at all material times, been living separately and apart from Ms Mlynarczyk on a permanent or indefinite basis, while others militate against such a finding. Accordingly, it is necessary for the Tribunal appropriately to weigh those competing considerations against each other in order to make a determination on the question whether Mr Mlynarczyk has, at all material times, been living separately and apart from Ms Mlynarczyk on a permanent or indefinite basis: Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 as 176-177; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 555-556, 559.

80.     Before turning to the financial aspects of the relationship between Mr Mlynarczyk and Ms Mlynarczyk, it is of some importance, in the Tribunal’s opinion, to determine the timing of the period of their physical separation which, according to the evidence, occurred when Ms Mlynarczyk left the matrimonial home in Gosnells and stayed with her sons, Mark and Michael, in Victoria Park.  According to the evidence of Mr Mlynarczyk and Ms Mlynarczyk, that physical separation occurred in 1994 and lasted for about 18 months following which Ms Mlynarczyk returned to the Gosnells house in 1996.  There is, however, other evidence before the Tribunal which is inconsistent with that evidence, including:

·     in July 2002 Mr Mlynarczyk and Ms Mlynarczyk informed Centrelink that they had separated “7 years ago” (T10, p108; T11, p116);

·     in February 2004 Mr Mlynarczyk informed Centrelink that he and Ms Mlynarczyk had separated “5 years ago” (T20, p137);

·     in December 2005 Mr Mlynarczyk informed Centrelink that he and Ms Mlynarczyk had separated in “1992” (T20, p186);

·     a statutory declaration of Kasia Mlynarczyk, dated 25 January 2006, which indicates that the period of physical separation of Mr Mlynarczyk and Ms Mlynarczyk was 1992-1994 (T35, pp 214-215);

·     the oral evidence of Michael Mlynarczyk (with whom Ms Mlynarczyk stayed during the period of physical separation) to the effect that Ms Mlynarczyk moved in with him and his brother, Mark, in about 1992 and stayed with them for about one year (see paragraph 43 above).

The Tribunal also notes the evidence of Mr Mlynarczyk and Ms Mlynarczyk that their daughter, Kasia, accompanied Ms Mlynarczyk when she left the Gosnells house and moved in with their 2 sons in Victoria park but that Kasia returned to the Gosnells house a few weeks later and stayed there with Mr Mlynarczyk for about 18 months at which time, because of Kasia’s efforts, Ms Mlynarczyk returned to the Gosnells house.  A chronology prepared for the Tribunal by Kasia Mlynarczyk (Exhibit A8), however, indicates that, following the completion of an Interior Design Course she undertook in Perth in the period 1992-1994, she went to Melbourne in search of employment in 1995 and lived inter-State from 1995 to 2000.  Having regard to the whole of the evidence before it, the Tribunal is reasonably satisfied, and finds, that the period of physical separation, during which Ms Mlynarczyk resided with her 2 sons in Victoria Park, occurred during 1992-1994, rather than during 1994-1996.

81.     As regards the evidence relating to the financial aspects of the relationship of Mr Mlynarczyk and Ms Mlynarczyk (see paragraphs 61-70 above), the Tribunal notes that in June 1996 – that is, approximately 2 years after Ms Mlynarczyk returned to live in the Gosnells house (as found by the Tribunal) and the alleged breakdown of the marital relationship shortly thereafter – Mr Mlynarczyk and Ms Mlynarczyk opened a joint bank account in connection with their obtaining a loan of $20,000 for the purpose of renovating their Gosnells house.  Those renovations, the Tribunal notes, involved modernising and beautifying the existing house rather than, for example, extending or altering the structure of, the house in order to facilitate Mr Mlynarczyk’s and Ms Mlynarczyk’s living separately in that house.  The Tribunal also notes, inter alia, the evidence (as set out above) regarding the use of the abovementioned account, the subsequent opening of joint bank accounts by Mr Mlynarczyk and Ms Mlynarczyk, the payment of the mortgage repayments and other outgoings in respect of the Gosnells property, and the payment of day-to-day household expenses.  The Tribunal accepts the applicant’s submission that from 1996 onwards there was, if anything, an increase in the extent of the financial intermingling between Mr Mlynarczyk and Ms Mlynarczyk rather than a gradual unravelling of their existing financial relationship as might have been expected in the event of a marital breakdown and separation.  The Tribunal also accepts the applicant’s submission that the closure by Mr Mlynarczyk and Ms Mlynarczyk of the abovementioned joint account (opened in 1996) in January 2006 (shortly before the SSAT hearing in this matter) should be regarded as a self-serving act designed to bolster their claim that they are living separately and apart.  Likewise, the Tribunal regards the actions of Mr Mlynarczyk and Ms Mlynarczyk in making wills in September 2006 whereby they each left all of their property to their children, and nothing to each other, and at the same time taking steps to convert their ownership of the Gosnells property from a joint tenancy to a tenancy in common (which was eventually registered in May 2007), as self-serving actions taken by them in accordance with legal advice at a time after the present proceedings had been instituted by the applicant.  The Tribunal notes Mr Mlynarczyk’s submission that the abovementioned bank loans were taken out in the joint names of Mr Mlynarczyk and Ms Mlynarczyk simply because they were secured against the Gosnells property which was jointly owned by them, but the fact remains that they chose to take out those loans on that joint basis rather than individually to arrange each of those loans on an individual basis, no doubt because it was more convenient and financially advantageous to do so.  Having regard to the whole of the evidence relating to the financial aspects of the relationship between Mr Mlynarczyk and Ms Mlynarczyk, the Tribunal is satisfied that there has, at all material times, been a very substantial degree of financial interdependence and cooperation between them, and, in the Tribunal’s opinion, this matter, on balance, weighs against a finding that Mr Mlynarczyk has been living separately and apart from Ms Mlynarczyk on a permanent or indefinite basis.

82.     The evidence regarding the nature of the household (as summarised in paragraphs 71-72 above), in the Tribunal’s opinion, on balance, weighs in favour of a finding that Mr Mlynarczyk has been living separately and apart from Ms Mlynarczyk on a permanent or indefinite basis.

83.     As regards the social aspects of the relationship, the evidence (as summarised in paragraphs 73-74 above) is, in the Tribunal’s opinion, somewhat inconsistent and inconclusive.  Although the evidence of Mr Mlynarczyk and Ms Mlynarczyk and of the witnesses (comprising family members, and friends of Mr Mlynarczyk) clearly points towards Mr Mlynarczyk’s living separately and apart from Ms Mlynarczyk, that evidence is not objective, thereby detracting from the weight that would otherwise be attached to that evidence.  There is, on the other hand, third party documentary material, to which the Tribunal attaches significant weight, which points in the opposite direction.  There is also the letter from Mr Mlynarczyk’s general practitioner, in support of Mr Mlynarczyk’s claim, to which the Tribunal attaches some weight.  Given the lack of consistency of the evidence, and the weight which the Tribunal regards as appropriate to attach to the various components of that evidence, the Tribunal regards this matter is somewhat equivocal and as not clearly weighing for or against a finding that Mr Mlynarczyk has been living separately and apart from Ms Mlynarczyk on a permanent or indefinite basis.

84.     The Tribunal accepts that, at all material times, there has not been a sexual relationship between Mr Mlynarczyk and Ms Mlynarczyk, and that this matter points towards their living separately and apart from each other.  Having regard, however, to all the circumstances, including:

·     the evidence of Ms Mlynarczyk that Mr Mlynarczyk had never been physically affectionate towards her;

·     the apparent personal incompatibility of Mr Mlynarczyk and Ms Mlynarczyk and the unhappiness of their relationship; and

·     Mr Mlynarczyk’s serious medical condition, including ischaemic heart disease and back pain from which he has been suffering since at least 2000;

the Tribunal does not attach significant weight to this matter.

85.     Finally, as regards the existence or non-existence of a mutual commitment, the Tribunal notes the evidence of Mr Mlynarczyk and Ms Mlynarczyk that their marriage broke down in 1996 and since then they have not regarded their relationship as that of a married couple and have not felt any commitment to each other or provided any companionship or emotional support to each other.  On the other hand, they have been married since 1970 and, apart from a period of about 18 months in the early-to mid 1990s they have lived together for the whole of that period of 38 years.  As regards the abovementioned period of about 18 months when Ms Mlynarczyk left the matrimonial home in Gosnells and lived with her 2 sons in Victoria Park (which, the Tribunal has found, occurred in 1992-1994), the Tribunal regards it as significant that, at the end of that period, Ms Mlynarczyk chose to return to the Gosnells house and has lived there with Mr Mlynarczyk ever since, despite the fact that she was in secure full-time employment and was financially able to support herself.  The Tribunal likewise regards it as significant that at no time has either of them taken any steps to obtain a divorce or a legal separation or a property settlement; on the contrary, they have, since 1996, continued to cooperate financially and to provide financial support to each other when required.

86.     The Tribunal notes that Mr Mlynarczyk applied to Homeswest for housing in September 2003 but that he refused an offer of housing in December 2003 and subsequently failed to respond to a Homeswest survey in September 2004 resulting in his application being discontinued by Homeswest.  In the Tribunal’s opinion, although Mr Mlynarczyk’s refusal of the offer of housing in December 2003 may have been reasonable because of the unsuitability of the relevant location, his failure to maintain or renew his application is indicative of a lack of genuine desire to leave the Gosnells house in which he lives with Ms Mlynarczyk.  The Tribunal also notes the evidence of Ms Mlynarczyk at the hearing that she will move into her Kenwick home unit when the current lease expires in March 2008, but the Tribunal regards that evidence as spontaneous and unconvincing and it attaches little weight to it.

87.     In the Tribunal’s opinion, although Mr Mlynarczyk and Ms Mlynarczyk claimed in their evidence that they felt no commitment, and provided no companionship or emotional support, to each other, their conduct over a long period of time indicates otherwise.  More specifically, their continuing to reside in the Gosnells house without interruption since at least 1996 (and probably since 1994) and to cooperate financially, share the cost of the major household expenses and support each other financially when required (for example, in respect of paying the mortgage repayments), despite the fact that each of them has had ample opportunity to move out and reside elsewhere, together with their apparent unwillingness to institute proceedings for a divorce, a legal separation or a property settlement, indicate, in the Tribunal’s opinion, the existence of a continuing commitment on their part to stay together indefinitely as a couple despite their apparent personal incompatibility and the unhappiness of their relationship.  In expressing that opinion, however, the Tribunal accepts that the level of commitment displayed by each of them is unequal – Ms Mlynarczyk’s commitment to Mr Mlynarczyk being significantly greater than his commitment to her – and that other factors have also contributed, and are contributing, to their staying together, including mutual financial advantage, convenience and personal obstinacy.  Be that as it may, the Tribunal is nevertheless reasonably satisfied, having regard to all the circumstances, that there has at all material times been, and there continues to be, a significant commitment on the part of each of Mr Mlynarczyk and Ms Mlynarczyk – especially on the part of the latter – to the other and, in the Tribunal’s opinion, that continuing commitment weighs against a finding that Mr Mlynarczyk has been living separately and apart from Ms Mlynarczyk on a permanent or indefinite basis.

Finding

88.     Given that some of the abovementioned circumstances, matters and factors point towards a finding that Mr Mlynarczyk has been living separately and apart from Ms Mlynarczyk on a permanent or indefinite basis, whereas others point towards a contrary finding, the weight that is to be attached to the various competing considerations is a very important – indeed, decisive – issue.  In this connection it is appropriate for the Tribunal to comment on the performance of Mr Mlynarczyk and Ms Mlynarczyk as witnesses and the credibility of their evidence.  As regards Mr Mlynarczyk, even making allowances for the difficulties of giving his evidence through an interpreter and his health problems, he was, in the Tribunal’s opinion, an unimpressive witness.  The Tribunal accepts the applicant’s submission that there were numerous instances of his dissembling in his evidence under cross-examination (see paragraphs 26-27, 29 above) and that the credibility of that evidence is very doubtful.  As regards Ms Mlynarczyk, while the Tribunal generally regards her evidence as more credible than that of Mr Mlynarczyk, it nevertheless notes that she was not a disinterested witness and, in its opinion, she was at pains to minimise the relationship between herself and Mr Mlynarczyk, especially in respect of the nature and extent of her commitment to Mr Mlynarczyk, and tended to be evasive and lacking in candour when giving evidence under cross-examination.  For example, the Tribunal finds it very difficult to accept her evidence that, despite Mr Mlynarczyk’s recent serious heart problems, she is no more concerned about his health than she would be about the health of any of her friends, and her evidence that she proposes to leave the Gosnells home and move into her Kenwick home unit when the existing lease expires in March 2008.

89.     Having regard to the abovementioned considerations regarding the evidence of Mr Mlynarczyk  and Ms Mlynarczyk, and also to the fact that the other witnesses who gave evidence are either family members or friends of Mr Mlynarczyk and accordingly cannot be considered to be entirely objective, the Tribunal regards it as appropriate to place greater reliance on the objective evidence relating to the conduct of Mr Mlynarczyk and Ms Mlynarczyk and on the relevant documentary evidence where that evidence is inconsistent, in material respects, with the evidence given by Mr Mlynarczyk and Ms Mlynarczyk.

90.     Having considered the whole of the evidence relating the relationship between Mr Mlynarczyk and Ms Mlynarczyk , the Tribunal is of the opinion that the aspects  of that relationship which are deserving of the greatest weight in determining the true nature and character of that relationship are the financial aspects of the relationship and the longstanding mutual commitment of Mr Mlynarczyk and Mrs Mlynarczyk as demonstrated by their conduct.  In the Tribunal’s opinion, those aspects of the relationship, as previously discussed, militate against a finding that Mr Mlynarczyk has, at all material times, been living separately and apart from Ms Mlynarczyk on a permanent or indefinite basis.  Other aspects of the relationship – including the nature of the household and (to a marginal extent) the absence of a sexual relationship – militate in favour of such a finding.  The social aspects of the relationship are, given the inconsistency between the evidence of the witnesses (none of whom can be regarded as objective) and relevant third party documentary evidence, somewhat equivocal.

91. The Tribunal concludes, having weighed the various aspects of the interpersonal relationship of Mr Mlynarczyk and Ms Mlynarczyk against each other, that, although their ongoing marital relationship is, and at all material times has been, an unhappy and unfulfilling one, especially for Ms Mlynarczyk, that marital relationship has not broken down and is presently continuing. The Tribunal is accordingly of the opinion, and finds, that Mr Mlynarczyk at all material times has not been, and is not presently, living separately and apart from Ms Mlynarczyk on a permanent or indefinite basis, within the meaning of s4(2) (a) of the Act.

Finding

92. The Tribunal finds, therefore, that Mr Mlynarczyk at all material times has been, and is presently, a “member of a couple” for the purposes of the Act.

Decision

93. For the above reasons the Tribunal sets aside the decision under review and remits the matter to the applicant for reconsideration in accordance with the direction that the rate of DSP payable to Mr Mlynarczyk be calculated on the basis that he is, and at all material times has been, a “member of a couple” for the purposes of the Act.

I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:...............[sgd C Skinner]........................
  Associate

Dates of Hearing  27-29 August 2007, 13 March 2008
Date of Decision  9 May 2008
Counsel for the Applicant         Ms P Giles
Solicitor for the Applicant          Australian Government Solicitor
Counsel for the Respondent     Mr H Christie
Solicitor for the Respondent     Director of Legal Aid, Western Australia