Nanieil Shaky and Secretary, Department of Education, Employment and Workplace Relations
[2013] AATA 359
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/5744
General Administrative Division )
Re: Nanieil Shaky
Applicant
And: Secretary, Department of Education, Employment and Workplace Relations
RespondentCORRIGENDUM
TRIBUNAL: Senior Member J F Toohey
DATE: 4 June 2013
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
Where the decision of the Tribunal currently reads “The Tribunal sets aside the decision under review and remits the matter to the Respondent for assessment of the amount of overpayment of newstart allowance to Mr Shaky”, the decision shall now read:
“The Tribunal sets aside the decision under review and in substitution decides that Mr Shaky was not a member of a couple from 1 April 2012. The matter is remitted to the Respondent for assessment of the amount of overpayment of newstart allowance.”
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Senior Member J F Toohey
[2013] AATA 359
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5744
Re
Nanieil Shaky
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
Decision
Tribunal Senior Member J F Toohey
Date 31 May 2013 Place Sydney The Tribunal sets aside the decision under review and remits the matter to the Respondent for assessment of the amount of overpayment of newstart allowance to Mr Shaky.
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Senior Member J F Toohey
Catchwords
SOCIAL SECURITY – newstart allowance – whether applicant a member of a couple – whether applicant and wife living separately and apart on a permanent or indefinite basis – factors to be considered – Tribunal satisfied applicant not a member of a couple as of March 2012 – decision under review set aside
Legislation
Social Security Act 1991 ss 4(2), 4(3)
Cases
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
Senior Member J F Toohey
31 May 2013
Background
Nanieil Shaky is an Australian citizen. In the late 1990s, he moved to the United States where he married Gilma Jimenez in October 2004. They lost their house during the Global Financial Crisis and decided to relocate to Australia. Ms Jimenez arrived in 2010 and Mr Shaky followed in May 2011, after he had wound up their affairs in the United States.
In May 2011, Mr Shaky applied for newstart allowance. His claim form cannot be located but it apparently identified Ms Jimenez as his partner because he was granted newstart allowance at the maximum partnered rate.
The history of newstart payments to Mr Shaky is not entirely clear. On 26 July 2011, Centrelink wrote to him for information about Ms Jimenez’ earnings and advised that, if he or Ms Jimenez did not contact Centrelink by 15 August 2011, his payment would be stopped. It does not appear that Mr Shaky replied.
On 23 August 2011, Centrelink wrote to Mr Shaky advising that the correct amount of Ms Jimenez’ earnings had not been taken into account in calculating his newstart allowance, and he had been overpaid $483.60 for the period 3 to 16 August 2011, which was to be recovered.
On 14 September 2011, the date Mr Shaky’s next newstart allowance payment was due, he was not paid. The following day, he complained by email to Centrelink. On 16 September 2011, a Centrelink officer telephoned Mr Shaky and explained that he had not been paid because of Ms Jimenez’ income. Mr Shaky continued to dispute the decision.
For reasons which are not clear, on 28 September 2011 Mr Shaky’s payments resumed at the maximum partnered rate. Then on 25 October 2011, Centrelink wrote to Mr Shaky advising that his rate of payment from 14 September 2011 was nil because his and Ms Jimenez’ combined earnings exceeded the allowable limit. The following day, Mr Shaky again complained to Centrelink by email.
Again for reasons which are not clear, despite its letter of 25 October 2011, Centrelink continued to pay Mr Shaky the maximum partnered rate.
On 15 February 2012, Centrelink wrote to Mr Shaky advising that his payment had been suspended because “we have not received a reply to a letter we sent you”. It is not clear from Centrelink’s file what letter this referred to, but it appears to refer to a request for information about Ms Jimenez’ earnings.
Centrelink’s records show that, on 29 February 2012, an officer spoke by telephone to Mr Shaky and “discussed the request for [Ms Jimenez’] payslips”. Mr Shaky advised the officer he could not obtain the payslips because he and Ms Jimenez were separated.
Following this conversation, Centrelink sent Mr Shaky a Relationship Details – Separated under one roof form. The record shows the officer advised him Centrelink “would follow up [Ms Jimenez’] income with her employer”. According to the file, Mr Shaky’s payment was “restored” after this conversation (even though, other than briefly in September 2011, his payments continued throughout).
On 18 April 2012, Centrelink determined that Mr Shaky was a member of a couple with Ms Jimenez and her income was to be taken into account in assessing his rate of payment. The outcome of this determination was recorded as “Present rate to continue”. It appears this was meant to indicate that his nil rate of payment would continue but, in fact, he continued to be paid up to 23 October 2012.
None of this history has any bearing on my decision that Mr Shaky was not a member of a couple as of March 2012 but it indicates why he has found the process confusing.
On 19 September 2012, after speaking by telephone with Mr Shaky and Ms Jimenez, an Authorised Review Officer affirmed the decision that Mr Shaky was a member of a couple.
On 25 September 2012, Mr Shaky applied to the Social Security Appeals Tribunal (SSAT) for review of Centrelink’s decision.
On 9 November 2012, Centrelink determined that Mr Shaky had been overpaid a total of $13,522.94 for the periods 17 August to 30 August 2011; 14 September to 27 September 2011; 28 September to 11 October 2011; 26 October 2011 to 9 October 2012; and 10 October to 23 October 2012. Letters about the first three periods were sent to him on 9 November 2012 and about the last two periods on 12 November 2012.
On 29 November 2012, the SSAT affirmed Centrelink’s decision.
Legislation
The rate at which a person is paid a social security payment is calculated according to the Social Security Act1991 (the Act).
A person who is a member of a couple is paid less than if she or he were single, the rationale being that a couple can pool resources and live more cheaply than if each were single. If a person is a member of a couple, the income and assets of his or her partner are taken into account in determining their entitlement.
By s 4(2)(a) of the Act, a person who is legally married to another person and is not, in the Secretary's opinion, living separately and apart from the other person on a permanent or indefinite basis, is a member of a couple.
Section 4(3) provides that, in forming an opinion about the relationship between two people, the Secretary (and so the Tribunal) must have regard to all the circumstances of the relationship including, in particular:
(a)the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b)the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c)the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d)any sexual relationship between the people;
(e)the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship or a de facto relationship.
The Courts and this tribunal have observed on many occasions that every relationship is different, and no one factor in s 4(3) is more important than any other.
Considering the meaning of “marriage-like relationship”, in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546, French J said, at 555:
Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2Must have regard to each of:
(a)the financial aspects of the relationship;
(b)the nature of the household;
(c)the social aspects of the relationship;
(d)any sexual relationship between the people;
(e)the nature of the people’s commitment to each other.
3In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a)financial cooperation;
(b)cohabitation;
(c)a sexual relationship;
(d)cooperative household arrangements;
(e)mutual commitment.
The question in the present case is not whether Mr Shaky and Ms Jimenez have a “marriage-like relationship” but whether, being married, they are living separately and apart on a permanent or indefinite basis. Either way, the answer will vary with the circumstances of each case. As French J said in Pelka, at 566:
The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
Is Mr Shaky a member of a couple with Ms Jimenez?
Mr Shaky gave evidence before the Tribunal on 3 April 2013. At that time, Ms Jimenez declined to attend and give evidence. Having heard Mr Shaky’s evidence, I decided it was important to hear from her as well. When the Tribunal contacted her and asked her to attend, she readily agreed and attended a resumed hearing on 24 May 2013 at which she and Mr Shaky gave evidence.
Ms Jimenez asked to give her evidence separately from Mr Shaky, and I agreed that she could on the basis that it might be necessary to put parts of her evidence to him for comment. Because of the nature of some of her evidence, I have not referred to it specifically in these reasons. However, I am satisfied that Mr Shaky was given the opportunity to comment on her evidence where it was adverse to him.
Both Mr Shaky and Ms Jimenez impressed me as thoughtful, honest witnesses and, subject to one qualification referred to below at paragraphs [50] – [53], I have no reason to doubt their evidence.
Background
Mr Shaky and Ms Jimenez were 34 and 42 years old respectively, when they married. She had gone to the United States from her family home in Colombia. Both intended to have children in the future.
Ms Jimenez had a miscarriage in 2001, before they married, and another in 2005 after an unsuccessful attempt at IVF. She had further IVF treatments in 2006 and 2007 by which time she was 45. She decided against further treatment but thought it still possible she might become pregnant. Her family history gave her some grounds for hope: she is the ninth of ten children, her aunts had children in their forties, and one had a child at 52.
Ms Jimenez investigated IVF treatment when she arrived in Australia but found the cost prohibitive and abandoned the idea. By that time she was nearly 50.
Mr Shaky gave evidence that, about a month after he arrived in Australia in May 2011, Ms Jimenez “dropped the bombshell” that she was past menopause and past having children. They both identify that as the point as the point at which they separated although Ms Jimenez gave evidence that she continued to hope for some time that they might resolve their difficulties. Mr Shaky says from that point he started looking for a younger woman with whom he could have children. Despite Ms Jimenez’ age, he says her “bombshell” was unexpected because she looks young and he does not know much about “women’s issues”.
Having heard from them both, I accept that the fact Ms Jimenez could no longer have children marked a turning point in the relationship. She spoke quite dispassionately about Mr Shaky’s desire for children which she regards as his right, and I accept that, from that point, he set about finding a younger partner.
That said, there are discrepancies in the dates on which Mr Shaky and Ms Jimenez have said at various times that they separated.
Date of separation
Mr Shaky says that he told a Centrelink officer at the Auburn office that he separated in June 2011. He could describe the appearance of the person he says he spoke to but did not know his name. There is no record of this conversation in Centrelink’s file and, in the absence of any other evidence, I cannot be satisfied that it occurred.
In an email to Centrelink on 16 September 2011 complaining about his payment, Mr Shaky wrote that his payment had been stopped and the money his “partner” made was not enough to support them both. In another email on 27 October 2011, he wrote that stopping his payment would “push my wife to stop working”. It is not clear why, if he considered himself separated by this time, he did not say so.
The first record of Mr Shaky telling Centrelink he had separated was on 29 February 2012 when he told an officer he could not get copies of Ms Jimenez’ pay slips because they were separated. It does not appear, from the record, that he identified a particular date when they separated.
On the Relationship Details form which he completed with Ms Jimenez’ help on 10 March 2012, Mr Shaky said they separated on 5 December 2011. According to the SSAT’s statement of reasons, he said they separated before they moved house on about 1 December 2011. According to the SSAT’s statement of reasons, Ms Jimenez said they separated at the end of December 2011. I do not think any discrepancy between these particular dates is significant.
Ms Jimenez gave evidence that she and Mr Shaky separated two or three months after he arrived in Australia when he learned she could not have children, although she hoped for some time they might work things out. By late December 2011, when she realised they could not, she knew they had to separate. She says it was her decision because, to a Muslim the purpose of marriage is children; he has the right to children and she cannot provide them. Mr Shaky described it as his decision in that, as soon as he learned she could not have children, he started looking for a younger woman.
According to a note of a conversation with a Centrelink officer in September 2012, she said the relationship had deteriorated over many years and they separated in March 2012 when she moved him into the lounge room on to the sofa bed. Ms Jimenez told me that was not correct, and they separated around the end of 2011. However, the note is quite clear and I see no reason to believe the conversation was recorded inaccurately.
For the reasons set out below, I am satisfied that Mr Shaky and Ms Jimenez are no longer a couple. As to the date of separation, I accept it can be difficult to assign a precise date to a separation when parties remain living together. However, given Ms Jimenez’ hope that things might work out between them, and that she did not give up hope until the end of 2011, I am not satisfied they were really separated in around June 2011.
The reference in the Centrelink notes to their separation in March 2012 when Ms Jimenez moved Mr Shaky into the lounge room is clear. The house they were living in from December 2011 had only one bedroom, although it had two bathrooms (see below at paragraph [42]). Both say it was all they could afford, but it suggests that physical separation was not essential to them in December 2011.
In all the circumstances, I am not satisfied that Mr Shaky and Ms Jimenez ceased to be a couple before March 2012. I am satisfied that, from that time, they were no longer a couple.
The nature of the household
When Mr Shaky arrived in Australia, he and Ms Jimenez lived in the small, one-bedroom apartment she was renting in Auburn. On 1 December 2011, they moved to a one-bedroom house in Auburn where the rent was cheap. It had two entrances and two-bathrooms, and they both say they planned to live independently. The lease was in Ms Jimenez’ name. Around the end of August 2012, after the owner decided to sell, they moved to a two-bedroom house in Seven Hills where they still live. They have separate bedrooms.
Mr Shaky gave evidence that he wanted to find somewhere of his own in August 2012 rather than move with Ms Jimenez, and he arranged to move into a friend’s house. He did not want to move to that house, which Ms Jimenez had chosen and was in her name only, and he did not like the area. However, the night before he was due to move in, he learned that his friend lived in public housing which he was sub-letting in breach of his tenancy agreement. Mr Shaky decided not to move in and rang Ms Jimenez; he asked if he could move in with her and she agreed.
On the Relationship Details form which he completed in March 2012, Mr Shaky indicated that he and Ms Jimenez paid “half and half” for food and housekeeping items, that both did shopping, both did cleaning and washing, and he did gardening and general maintenance.
Mr Shaky and Ms Jimenez both gave evidence that they do not eat together, except occasionally if she asks him to cook a steak for her on the barbeque (she says she does not cook). She gave evidence that she usually eats at the hospital where she works. Their evidence is consistent with Centrelink records showing that, on 13 September 2012, Mr Shaky told an officer they “only occasionally” eat together when she wants him to cook a steak on the barbeque; and a record that on 18 September 2012 Ms Jimenez told an officer they rarely ate together except for having breakfast on a weekend “sometimes”; she usually eats at work; he buys his own food at the market and she helps him sometimes with groceries when he runs out of money.
Financial aspects of the relationship
Some of the financial aspects of the relationship are confusing.
Ms Jimenez is employed full time in a hospital and is studying at university. The hospital pays her tuition fees. Mr Shaky receives approximately $550 each fortnight in newstart allowance. He keeps $20 or $30 for himself and gives the rest to her. From this she takes $200 a week for rent; $60 a month for his mobile phone (which is part of her plan under a two-year contract which expires in January 2014); the cost of gardening; and, occasionally, money for groceries which she has bought for him when he has run out of money.
Since January 2012, Ms Jimenez has kept a record all money she says Mr Shaky owes her and which she produced to the Tribunal. She says she started the record after they separated in December 2011. It shows he owed her $150 in January 2012 increasing to nearly $1,500 in May 2013. Giving evidence, she conceded it is not entirely accurate, for example she tends to record when he pays her, rather than when money falls due, but they both agree it reflects his debt to her, and I accept that is so.
Mr Shaky and Ms Jimenez have told Centrelink and the SSAT they have no joint bank accounts, no joint assets and no joint liabilities. There is no evidence they have joint assets or liabilities, but Westpac records produced by the Secretary at the hearing show they opened a joint account in May 2011 which is still active. Mr Shaky also has an account in his own name into which Centrelink pays his newstart allowance, and Ms Jimenez has her own accounts.
The joint bank account shows regular internet withdrawals and transfers up until March 2013. (More recent statements are not in evidence). It also shows several movements of amounts around $30,000 including one which matches a transfer from Mr Shaky’s own account.
Mr Shaky denies any knowledge of this account and showed genuine surprise, and some anger, at the amount of some transactions in the account. He gave evidence that he gave Ms Jimenez the access code and PIN number to his own account so that she could take the money he owes her and she makes all the transfers. He denies making any internet transactions himself and says if he needs cash he goes into a branch, or occasionally uses an ATM, or borrows from friends.
At first, Ms Jimenez also denied any knowledge of the joint account. She then said she thought it had been closed in 2011. She denied using it herself and said Mr Shaky must still be operating it to transfer the money he owes her into her account. However, she agreed that transactions in 2011 and 2012 were made by her and that she gets all the bank statements for the account. When pressed further, she said she recalled that he asked her to keep it open so he could transfer money from his own account to the joint account, and from there into her account.
I am satisfied that Ms Jimenez knows of the existence of the joint account and is the person who operates it. The source of the funds and the reasons for the substantial amounts transferred is not clear and I did not think it necessary or relevant to press her for that information. Whatever the reason, I am satisfied that Mr Shaky has had no knowledge of, or involvement with, the account. If anything, her secrecy underlines the separate nature of their financial affairs.
Social aspects of the relationship
In the Relationship Details form, Mr Shaky responded “No” to questions about whether he and Ms Jimenez went on holidays together; whether their family and friends considered their relationship as similar to that of a married or de facto couple; whether they are invited out as a couple; and whether they share and social or leisure activities.
The SSAT recorded that Mr Shaky and Ms Jimenez said they maintained separate social lives and their family and friends know they have separated; they are not invited anywhere as a couple. They gave similar evidence before me. There is nothing to suggest they are not telling the truth.
Mr Shaky gave evidence that all of his family are in Iraq and he has not been back there since leaving for the United States. He says they know he and Ms Jimenez were married, that she had a miscarriage, that she can no longer have children, and that he is looking for someone else. Surprisingly, they have never asked her name and he has not told them.
Ms Jimenez’ family are in Spain and Colombia. For a time after she arrived in Australia, she knew no one, other than people she worked with. They both say this was a factor in their continuing to live in the same house. From her evidence before me, it appears Ms Jimenez has now developed a wider circle of friends and acquaintances.
Ms Jimenez has submitted letters from two work colleagues who say they are aware of her living arrangements, and aware they have been living together peaceably for the past two-and-half-years while in the process of their divorce. I have not had the opportunity to hear from either of Ms Jimenez’ colleagues and I place no weight on their letters. In particular, their letters place the date of separation as late 2010, earlier than either Mr Shaky or Ms Jimenez claim, and even before Mr Shaky arrived in Australia.
Mr Shaky was given an opportunity to produce letters from friends or colleagues who could verify the state of his relationship. He did not do so, but he told me he had spoken to a friend who was available by telephone. I decided against calling his friend because I could give little, if any, weight to what he might say.
Sexual relationship
Mr Shaky and Ms Jimenez say they have not had a sexual relationship since around June 2011 when she “dropped the bombshell” that she could not have a child. The Secretary does not dispute, and I have no reason to doubt, their evidence.
Nature of commitment to each other
The Secretary submits that the continuing commitment which Mr Shaky and Ms Jimenez have demonstrated to each other is one of the most telling aspects of their relationship. In particular, they continue to share a house, say they would care for each other if necessary, and have taken no steps to divorce.
Ms Jimenez told the Centrelink officer in September 2012 that she was still new to Australia and did not know many people, and she preferred to feel safe and live with someone she knows. She said the current property is in her name so she “has the freedom to kick [Mr Shaky] out if she is not happy”. She said she had given him six months to find a job or she was going to ask him to move out.
Giving evidence before the Tribunal, Ms Jimenez was asked why, more than six months after that conversation, she has mot told Mr Shaky to leave. She said she was angry at him when she spoke to the Centrelink officer, and she would not ask him to leave. She gave evidence that, when she met him in the United States, her life was very difficult and he opened his house to her; he let her stay as long as she needed and never asked for a financial contribution. At that time, there was no relationship between them but in time it developed. Now that he has fallen on hard times, she will not demand he leave because she feels she has a “life debt” for what he once did for her.
When Ms Jimenez was studying for a time in 2012 and was too scared to catch public transport by herself at night, Mr Shaky borrowed a friend’s car to drive her to and from work for a couple of weeks. Neither disputes that they help each other sometimes. When they are home together they get along well but both say they are friends only, and there is no relationship between them, and they mainly communicate by text messages or by leaving notes on the fridge.
The Centrelink officer recorded in September 2012 that Ms Jimenez said Mr Shaky had not been at home much for the previous two weeks and she thought “he may have found another girlfriend”. They both gave evidence that he has brought women home to the house in Seven Hills. Although Ms Jimenez could only recall one such occasion, she said she sees evidence of someone else being present in the house such as coffee cups, and the dishes being washed. Giving evidence about this did not appear to cause her any upset or emotion.
Neither Mr Shaky nor Ms Jimenez has taken any steps to divorce. Although she gave evidence that she has been “looking into it” recently, there is no evidence that she has taken the matter further. Mr Shaky says he will divorce her as soon as he finds another partner but, in the meantime, he sees little point.
Consideration
As to whether two people who are married are living separately and apart, in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, O’Loughlin J noted the comments of Watson J in In Marriage of Todd (No 2) (1976) 25 FLR 260, at 262-263:
In my view, separation means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used in the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such a dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in private and public relationships.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
O’Loughlin J also noted (at 173):
… it is not sufficient merely to note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of the relationship.
There is no argument that, judged by the social and sexual aspects of their relationship, Mr Shaky and Ms Jimenez are no longer members of a couple. I accept they have no social or sexual life together.
In my view, the nature of Mr Shaky and Ms Jimenez’ household supports the conclusion that they have not been members of a couple for some time. They share few household chores, they rarely eat together and are not often home together. I accept they continue to share a home for essentially pragmatic reasons. I accept their relationship is closer to one of roommates rather than that of a couple.
The Secretary submits that the arrangement whereby Ms Jimenez in effect carries some of Mr Shaky’s debts is evidence that he is financially dependent on her, and this is evidence that they remain a couple. I understand that argument but do not agree in the circumstances of this case. When asked what she will do if Mr Shaky cannot or does not repay her, Ms Jimenez was philosophical and said that would be Allah’s will. The debt is relatively small and considered in light of all the evidence about their relationship, I do not think it changes its character substantially.
There is some evidence of a continuing commitment in that both Mr Shaky and Ms Jimenez speak well of each other, they plainly respect each other, and would help each other in difficult times. However, the fact that both describe their relationship quite dispassionately to the point of indifference, including that Mr Shaky is looking for someone new, indicates to me that while they care for each other, neither cares about preserving the marriage or the relationship.
I am satisfied that, as soon as Mr Shaky finds a suitable younger partner with whom he can live, he will leave the home. I am satisfied that Ms Jimenez feels deeply indebted to him and will not force him to leave before then. In the meantime, I am satisfied they are living separately and apart on a permanent or indefinite basis.
I am satisfied, on the evidence before me, that Mr Shaky and Ms Jimenez were no longer a couple by sometime in March 2012. As it is not possible to determine any particular date in that month, I find that, from 1 April 2012, Mr Shaky was no longer a member of a couple with Ms Jimenez.
The decision under review is set aside and the matter is remitted for assessment of the amount of overpayment of newstart allowance to Mr Shaky.
I certify that the preceding 75 (seventy -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ......[sgd]..................................................................
Associate
Dated 31 May 2013
Date(s) of hearing 3 April and 24 May 2013 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Date of Separation
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Marriage
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Discrepancies in Evidence
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