Pala and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 664

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 664

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1170

GENERAL ADMINISTRATIVE  DIVISION		)
Re		AMRIK PALA

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date2 September 2009

PlacePerth

Decision The Tribunal affirms the decision under review.

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

Deputy President

CATCHWORDS

SOCIAL SECURITY – age pension – applicant has received age pension since 1999 – rate of age pension payable to applicant – applicant legally married to another person in 2002 – applicant and other person living under one roof – consideration of all aspects of relationship between applicant and other person – applicant not living separately and apart from other person on permanent or indefinite basis – applicant a member of a couple – decision under review affirmed

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

2 September 2009 Deputy President S D Hotop

Introduction

1.      Amrik Pala (“the applicant”) and Kikuko Pala were legally married on 15 April 2002.

2.      The applicant has been receiving age pension under the Social Security Act 1991 (Cth) (“the Act”) since 1999.

3.      In August 2007 the applicant informed Centrelink that since December 2006 he and Kikuko Pala had been “living under one roof, but not as a couple”, and on 5 September 2007 he lodged with Centrelink a completed “Assessment of Living Arrangements” form.

4.      On 25 September 2007 a Centrelink officer decided that the applicant’s relationship with Kikuko Pala could not be treated as “separated under one roof”.  As a result of that decision age pension continued to be paid to the applicant at the “partnered” rate, on the basis that he was a “member of a couple”, rather than at the (higher) single rate.

5.      By letter dated 8 October 2007 the applicant informed Centrelink that (inter alia) Kikuko Pala was in Japan, having departed Australia on 2 October 2007, and he provided Centrelink with a statutory declaration made by Kikuko Pala on 28 September 2007 which stated that (inter alia) she was “separating from” the applicant and was leaving for Japan on 2 October 2007 but indicated that she would be returning to Australia “after about three months”.

6. On 14 November 2007 a Centrelink Authorised Review Officer (“ARO”) decided that the applicant could not be “treated as separated whilst living under the same roof as [his] wife” but that s 24 of the Act allowed him to be “treated as a single person while [his] wife [was] absent from Australia” and that his age pension was to be increased to the single rate from 2 October 2007.

7.      On 9 July 2008, following a review of information provided by the applicant and Kikuko Pala on 29 May 2008 regarding their relationship and living arrangements since Kikuko Pala’s return to Australia on 12 February 2008, a Centrelink officer decided to “re-implement” the ARO’s decision of 14 November 2007 and assess the applicant as “partnered”.

8.      On 15 December 2008 a Centrelink ARO determined that the decision to treat the applicant as a “member of a couple” and to pay age pension to him at the “lower married rate” was correct.  The ARO also decided that a debt comprising an overpayment of age pension, in the amount of $709.13, to the applicant in the period from 12 February 2008 to 20 May 2008 should be recovered from him, but that a debt comprising an overpayment of age pension, in the amount of $334.57, to the applicant in the period from 29 May 2008 to 8 July 2008 should be waived.

9.      On 19 February 2009 the Social Security Appeals Tribunal (“SSAT”) decided that the applicant is a “member of a couple” but that the abovementioned overpayment debt of $709.13 should be waived.

10.     On 19 March 2009 the applicant applied to this Tribunal for a review of the SSAT’s decision of 19 February 2009.

The Issue and the Tribunal’s Determination

11.     There is no dispute between the parties as to the following matters:

· the appropriateness of treating the applicant as not being a “member of a couple” for the purposes of the Act, pursuant to s 24(1) of the Act, during periods when Kikuko Pala has been absent from Australia (see paragraph 6 above);

·     the appropriateness of waiving the overpayment debt of $709.13 owed by the applicant to the Commonwealth (see paragraphs 8 – 9 above).

12. The sole issue which is in dispute and which must be determined by the Tribunal is whether, at all material times, the applicant has been a “member of a couple”, as defined by s 4(2)(a) of the Act, or, alternatively, whether, at all material times, he has been “living separately and apart from” Kikuko Pala “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the Act.

13. For the reasons which follow, the Tribunal has determined that the applicant has at all material times been, and is presently, a “member of a couple” for the purposes of the Act.

The Relevant Legislation

14. 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 subsection (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 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 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

15.     The evidence before the Tribunal comprised:

· the “T Documents” (T1 – T42, pp 1 – 297) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·     statement of facts filed by the applicant on 6 July 2009 (Exhibit A1);

·     letter (undated) from Louise Nanne, filed by the applicant on 6 July 2009 (Exhibit A2);

·     Department of Immigration and Citizenship records of dates of departures from, and arrivals in, Australia by Kikuko Pala and by the applicant (Exhibit R1); and

·     the oral evidence of the applicant.

The T Documents

16.     The T Documents include the following relevant material.

17.     In a completed Centrelink “Assessment of Living Arrangements” form dated 5 September 2007, the applicant provided the following information (inter alia) to Centrelink:

·     Kikuko Pala is his “separated wife”;

·     Kikuko Pala first stayed with him on 15 April 2002;

·     Kikuko Pala stays away “quite often” in Japan;

·     he intends to share accommodation with Kikuko Pala “until she finds some alternative accommodation”;

·     in the house in which they reside he and Kikuko Pala share the living areas and the kitchen, laundry and bathroom but they have separate sleeping areas;

·     he owns the house jointly with his daughter;

·     he pays the Council rates and Water Corporation charges in respect of the house;

·     he and Kikuko Pala each own a car;

·     he and Kikuko Pala have not purchased, and are not paying off, any real estate or goods together;

·     he has not made any arrangements about the disposal of household goods should either he or Kikuko Pala move out;

·     he and Kikuko Pala have a joint bank account but “practically” no use is made of it;

·     he is not authorised to use a credit card in the name of Kikuko Pala, and Kikuko Pala is not authorised to use a credit card or store credit in his name;

·     he and Kikuko Pala do not have any outstanding joint debts;

·     he does not hold any insurance policies jointly;

·     neither he nor Kikuko Pala is nominated as a beneficiary under the other’s will, life insurance policy or superannuation policy;

·     he has never claimed Kikuko Pala as a dependant for taxation purposes;

·     there is no shared payment of bills, and he pays the electricity, gas and telephone bills;

·     he sometimes does the shopping by buying in bulk because it is cheaper;

·     Kikuko Pala is employed by “Mrs Macs” and he is named as a contact person in an emergency;

·     only his name appears on his Medicare card;

·     he and Kikuko Pala are each covered by private medical insurance which the other has;

·     as regards household tasks, Kikuko Pala does the cleaning and washing and he does “the rest”;

·     he does not share social and leisure activities with Kikuko Pala and they do not go on holidays together;

·     relatives, friends or regular associates consider his relationship with Kikuko Pala as similar to that of a married couple “just for social reasons” and to “avoid embarrassment”, but they do not invite him and Kikuko Pala out as a couple;

·     Kikuko Pala came from Japan and they got married on 15 April 2002;

·     he has claimed that he and Kikuko Pala were married for certain purposes, namely, “Centrelink Newstart and her tax return”;

·     he does not have an ongoing sexual relationship with Kikuko Pala;

·     Kikuko Pala provides care, support or help to him in the following circumstances to the following extent:  in the event of illness, she makes him tea or coffee; in the event of personal crisis, she drives him to the doctor or hospital;

·     Kikuko Pala does not provide care, support or help to him in money matters or family disputes;

·     he described his relationship with Kikuko Pala as follows:

“ The marriage was irretrievably broken when she went back to Japan last year.  She is going again in early October.  We are living under one roof just for the sake of two dogs who are very attached to her.” (T5, pp 72 – 81)

18.     A statutory declaration made by Kikuko Pala on 28 September 2007 states as follows:

“ 1.      I was married to Mr Amrik Singh Pala on 15 April 2002.

2.Due to my family situation in Japan, I am separating from Mr Amrik Singh Pala and am leaving for Japan on 2 October 2007.

3.      I am leaving without any dispute or claim to settle with Mr Amrik Singh Pala.

4.I am a permanent resident of Australia and a working woman.  When I come back from Japan after about three months, I will earnestly look for an alternative accommodation as soon as I get back to work.” (T11, p 95)

19.     A letter dated 15 May 2008 from the applicant to Centrelink states as follows:

“ As I stated on the telephone, Kikuko Pala came back from Japan on 12 February 2008.  She has joined a course at TAFE and has not looked for work so far.  She is paying her expenses (food etc) from the saving she has had before she went to Japan in October last year.  She has also not sought any assistance from Centrelink because of her unpleasant experience previously and I have also not encouraged her to do so.

During my conversation with you, I tried to explain that our marriage is totally non-functional.  This is due to many complicated factors including age difference, ethnicity etc and it has been so, for the last about five years.  We are entirely two different people.  Being afraid of adverse legal consequences, I am not in a position to ‘push her out’ and this makes it all problematic.

Here I do not deny that due to my age (I will be 74 in August this year), and due to the history of my heart condition, her stay with me is, to some extent, beneficial to me and will keep me out of Aged Care Facility for a few more years.

…” (T15 p 114)

20.     In a completed Centrelink “Relationship Details: Separated under one roof” form, dated 29 May 2008, Kikuko Pala provided the following information (inter alia) to Centrelink:

·     she separated from the applicant on 2 October 2007;

·     she is living at the same address as the applicant and intends to live there with him until she gets “a secure job and can afford a rental accommodation”;

·     her relationship with the applicant has not changed since they separated;

·     “other than living in one house”, she does “not have much in common with” the applicant;

·     she does not think that there is any possibility that she and the applicant will get back together again;

·     she has not filed for divorce because she has been divorced before and she does “not want to go that way again”;

·     she has never claimed that she and the applicant were married or a member of a couple since their separation;

·     she does not own her own home;

·     she does not pay board and lodgings;

·     she does not pay rent;

·     the reason she does not pay for her accommodation is that she is “not working and cannot afford to pay”;

·     she and the applicant do not eat meals together;

·     she and the applicant use the same kitchen: “mostly” she prepares her “own meals according to [her] Japanese tastes”;

·     she and the applicant use the same laundry:  she “[does not] mind doing the washing”;

·     she and the applicant use the same bathroom:  the applicant “is not very regular in using bathroom” and she “can use it whenever [she likes]”;

·     she and the applicant do not use the same bedroom;

·     her bedroom is for her sole use and is not shared with the applicant;

·     she has never had a sexual relationship with the applicant;

·     the applicant provides care, support or help to her in the following circumstances to the following extent: in the event of illness, he “gets [her] tea, coffee and medicine”; in the event of personal crisis, he provides “friendly help and compassion”;

·     the applicant does not provide care, support or help to her in money matters or family disputes;

·     she and the applicant do not go on holidays together;

·     relatives, friends or regular associates do not consider her relationship with the applicant as similar to that of a married couple;

·     she and the applicant are not invited out as a couple;

·     she does not share social and leisure activities with the applicant;

·     she has never claimed the applicant as a dependant for taxation purposes;

·     only her name appears on her Medicare card;

·     she and the applicant have a joint bank account;

·     she and the applicant do not have access to each other’s accounts;

·     she is not authorised to use a store card or credit card in the name of the applicant;

·     the applicant is not authorised to use a store card or credit card in her name;

·     the applicant pays the telephone, electricity and gas bills;

·     she and the applicant have never been guarantor for one another since their separation;

·     she and the applicant do not have any outstanding joint debts;

·     the applicant pays for food and housekeeping items and she “share(s) expense”;

·     the applicant “does most of the shopping”;

·     she “[does not] mind doing cleaning” and the applicant “sometimes gives a hand in tidying up”;

·     she is “happy to do washing” and the applicant “sometimes helps to hang it for drying and bring it inside”;

·     gardening is “entirely [the applicant’s] job”;

·     general maintenance is also the applicant’s “job”;

·     the applicant owns a car and is responsible for the running costs, and she does not share the use of the car;

·     she owns a car and is responsible for the running costs, and she shares the use of the car with the applicant, her share being 95% and his share being 5%;

·     she and the applicant have not purchased, and are not paying off, any items together;

·     she had not made any arrangements about the household goods should either she or the applicant move out;

·     the applicant is not covered by any private medical insurance which she has, and she is not covered by any private medical insurance which the applicant has;

·     she and the applicant jointly hold a car insurance policy;

·     she does not have a will, superannuation or life insurance. (T20)

21.     In a completed Centrelink “Relationship Details: Separated under one roof” form, dated 29 May 2008, the applicant provided the following information (inter alia) to Centrelink:

·     he separated from Kikuko Pala on 2 October 2007;

·     he is living at the same address as Kikuko Pala and intends to live at the same address with her “until [she] gets a secure job and can afford suitable accommodation”;

·     his relationship with Kikuko Pala has not changed since they separated;

·     he and Kikuku Pala “do not have much in common”;

·     he does not think that there is any possibility that he and Kikuko Pala will get back together again;

·     he has not filed for divorce because of “adverse legal consequences”;

·     he has never claimed that he and Kikuko Pala were married or a member of a couple since their separation;

·     he owns his own home;

·     his home is not jointly owned with Kikuko Pala;

·     since their separation there have not been any structural alterations to the home;

·     he and Kikuko Pala do not eat meals together;

·     he and Kikuko Pala use the same kitchen: “mostly” he prepares his “own food with a can of baked beans etc”;

·     he and Kikuko Pala use the same laundry: “Kikuko helps with washing”;

·     he and Kikuko Pala use the same bathroom: he uses the bathroom “when it is free”;

·     he and Kikuko Pala do not use the same bedroom;

·     his bedroom is for his sole use and is not shared with Kikuko Pala;

·     he has never had a sexual relationship with Kikuko Pala “since separation”;

·     Kikuko Pala provides care, support or help to him in the following circumstances to the following extent: in the event of illness, she makes tea and gives him medicine; in the event of personal crisis, she provides “friendly help and advice”;

·     Kikuko Pala does not provide care, support or help to him in money matters or family disputes;

·     he and Kikuko Pala do not go on holidays together;

·     relatives, friends or regular associates do not consider his relationship with Kikuko Pala as similar to that of a married couple;

·     he and Kikuko Pala are not invited out as a couple;

·     he does not share social and leisure activities with Kikuko Pala;

·     he has never claimed Kikuko Pala as a dependant for taxation purposes;

·     only his name appears on his Medicare card;

·     he and Kikuko Pala have a joint bank account;

·     he and Kikuko Pala do not have access to each other’s accounts;

·     he is not authorised to use a store card or credit card in the name of Kikuko Pala;

·     Kikuko Pala is not authorised to use a store card or credit card in his name;

·     he pays the telephone, electricity and gas bills;

·     he and Kikuko Pala have never been guarantor for one another since their separation;

·     he and Kikuko Pala do not have any outstanding joint debts;

·     he pays for food and housekeeping items and they “share expenses”;

·     he does the shopping: Kikuko Pala is “not yet familiar with shopping here”;

·     Kikuko Pala does “most” of the cleaning;

·     Kikuko Pala does “most” of the washing, and he offers “some help”;

·     he does the gardening “entirely”;

·     he does the general maintenance “entirely”;

·     he owns a car and is responsible for the running costs, and he shares the use of the car with Kikuko Pala, his share being 99% and her share being 1%;

·     Kikuko Pala owns a car;

·     he and Kikuko Pala have not purchased, and are not paying off, any items together;

·     he has not made any arrangements about the household goods should either he or Kikuko Pala move out;

·     Kikuko Pala is not covered by any private medical insurance which he has, and he is not covered by any private medical insurance which Kikuko Pala has;

·     he and Kikuko Pala jointly hold an insurance policy for her car: “this was done in order to get her maximum no claim bonus”;

·     he does not have a will, superannuation or life insurance. (T21)

22. In his statement of facts (Exhibit A1) the applicant provided information regarding the circumstances of his relationship with Kikuko Pala, for the purposes of s 4(3) of the Act, as follows:

“ I – Financial aspects of the relationship

1. Mr Amrik Pala shares the ownership of the house with his daughter.  Ms Kikuko Pala does not share any real estate with him.

2. Mr and Ms Pala have a joint account with BankWest.  It was opened soon after they got married in April 2002.  It has a balance of approximately $180 and there have not been any transactions for the last about two years.  It will be closed along with the cancellation of joint car insurance policy (at #5 below).

3. Mr Amrik Pala pays all household bills including for gas, electricity, telephone, water, council rates etc.

4. Mr and Ms Pala do not share the food and household items expenses.  Ms Pala pays approximately $115 per week (or $500 per month) as living expenses.  This amount was determined as the difference between the living expenses when Ms Pala was in Perth and when she was overseas.

5. Mr and Ms Pala have a joint insurance policy for Ms Pala’s car.  This joint insurance policy was purchased in order to get Ms Pala maximum no claim bonus when Ms Pala bought a car in 2003.  This joint insurance policy will be cancelled when Ms Kikuko Pala buys another car.

…

II – Nature of the household

8.There are no dependent children and they (sic) and no other joint responsibility.

9.They have their own separate bedrooms since December 2006 when Ms Kikuko Pala came back from Japan after six months.  They have no emotional attachment and no feelings of intimacy and also Ms Kikko (sic) Pala likes to watch Japanese program on television late into the night.

10.Being under one roof with one kitchen, one laundry, one toilet and one shower/bathroom they share these areas of the house as and when any one of them needs.  Mostly they cook their own food and sometimes when Ms Kikuko Pala has some spare bland Japanese food, Mr Amrik Pala eats it by adding some spices of his own taste.

11.Mr Amrik Pala does all the outside (looking after the garden etc) and also some inside work including making his own bed, cooking food and looking after all services like electric power, gas, plumbing etc.  Ms Kikuko Pala does most of the laundry as there is only one washing machine and also does some kitchen work.

…

III – The social aspects of the relationship

13.Mr Amrik Pala and Ms Kikuko Pala do not share social activities together.

14.Mr Amrik Pala states that he does not talk to other people about whether he is married.  There is only one associate of Mr Pala who knows he is separated under one roof.

15.That associate Ms Louise Nanne has provided evidence in writing in this regard.

IV – Any sexual relationship between the people

16.Mr Amrik Pala and Ms Kikuko Pala do not share a sexual relationship.

…

V – The nature of the people’s commitment to one another

18.Considering the frequency of Ms Kikuko Pala’s travel back to Japan and length of stay there from 2 weeks to six months, the lack of any commitment to Mr Amrik Pala is clearly evident.  When she left with one-way ticket, on 31 May 2006, she signed a statutory declaration to the effect that she was separating from Mr Amrik Pala.  She also sent two boxes of her personal belongings by post to Japan and did not have any intention to come back.  But came (sic) back to Australia with one-way ticket on 1 December 2006.

19.On 2 October 2007 she went to Japan separating from Mr Pala and advising ‘When I come back from Japan after about three months, I will earnestly look for an alternative accommodation as soon as I get back to work’.

20.She came back on 12 February 2008, could not find work and in June 2008 she started studying for Business Administration Certificate III course at Central TAFE without asking for any assistance from Centrelink.  She completed this course in December 2008 and went back to Japan on 12 December 2008.  She came back on 12 February 2009 and is in the process of looking for work.

…

VI – Some other factors

…

24.Mr Amrik Pala has clearly and truthfully has (sic) stated about the advantages of having Ms Kikuko Pala in the house in that she can help care for his two dogs.  But when she was away for periods up to 6 months, he had no problem in caring for the dogs himself.

25.Mr Amrik Pala advised the ARO that he and Ms Kikuko Pala ‘has nothing in common, he thinks, speak and understand things differently because he has cultural differences …’.

26.… Mr Amrik Pala and Ms Kikuko Pala are two individuals living under one roof with the minimal interaction and with the spirit of ‘live and let live’. …”

The letter from Louise Nanne

23.     An undated letter addressed “To Whom It May Concern”, signed by Louise Nanne, states as follows:

“ I have known Mr Amrik Pala for about twenty years.  We met in a library and found (sic) it interesting to hear him speak Dutch, my native language.

Over the years we became good friends and he confides in me about practically everything, although he is a very private person.

I was one of two witnesses at his marriage to Kikuko.

For about the past three years, he has been talking about difficulties in their marriage and that they have nothing in common.

From what I understand, Amrik allows Kikuko to stay in his home till she finds employment, which will enable her to find accommodation elsewhere.” (Exhibit A2)

Although Ms Nanne was not available to give oral evidence at the hearing, the respondent did not object to the applicant’s tendering this letter in evidence.

Department of Immigration and Citizenship records

24.     According to records kept by the Department of Immigration and Citizenship (Exhibit R1), Kikuko Pala departed from, and arrived in, Australia on the following dates in the period from 2002:

Departure

8 August 2002

14 April 2003

27 June 2003

10 December 2004

31 October 2005

31 May 2006

2 October 2007

12 December 2008

        Arrival

23 August 2002

18 May 2003

14 September 2003

23 January 2005

9 December 2005

1 December 2006

12 February 2008

12 February 2009.

According to those records, the applicant’s only departure and arrival dates in the same period are as follows:

Departure

29 January 2007

        Arrival

7 February 2007.

The applicant’s oral evidence

25.     The applicant’s oral evidence may be summarised as follows:

·     he affirmed the contents of his abovementioned statement of facts (see paragraph 22);

·     he met a daughter of Kikuko Pala in September 2000 when he was studying in Japan and he subsequently first met Kikuko Pala in April 2001 when she visited India where he was staying at the time;

·     Kikuko Pala came to Australia for about one week in July 2001 and stayed at his house; she returned to Australia in January/February 2002 and decided to stay;

·     he and Kikuko Pala then decided to get married and they were married on 15 April 2002 at the Registry Office;

·     he was then 67 years of age and she was 48 years of age;

·     he had, by that time, been living alone for 15 years and he married Kikuko Pala for companionship, with a view to her becoming more educated and a companion for him;

·     he and Kikuko Pala initially shared a bedroom and had a sexual relationship but there has been “no attachment” between them since 31 May 2006 when she went back to Japan on a 1-way ticket;

·     the house in which he and Kikuko Pala live was formerly owned jointly by him and his former wife but since November 2003 it has been owned by him and his daughter (from his first marriage) as joint tenants;

·     Kikuko Pala bought her car in 2003 for $6,600 with money which she brought from Japan and a contribution of $2,600 from him;

·     Kikuko Pala bought a television set for $999 and a cabinet for $1,000 for the house;

·     Kikuko Pala has children from a former marriage in Japan but, because he cannot speak Japanese and they cannot speak English, he has nothing in common with them and has never been close to them;

·     neither her children nor his children attended their wedding;

·     he has 4 sons and 1 daughter but only his daughter and her family (who live in Shanghai, China) know about his marriage to Kikuko Pala;

·     Kikuko Pala has no relatives in Australia although she does have Japanese friends here whom she visits;

·     initially he took her to political party meetings and they visited friends/neighbours together but that has not happened since 2005;

·     he spends a lot of time on the computer although he goes to the gym 3 – 4 days per week, and Kikuko Pala also has her own laptop computer and spends most of the time at home;

·     neither he nor Kikuko Pala has taken any steps to get divorced; divorce is a “cultural taboo” in India and in Japan;

·     their marriage “does not mean much”; it is “just a piece of paper” and has “no significance”;

·     he is a compassionate person and he tries to be helpful to Kikuko Pala and encourages her to learn and speak English and “stand on her own feet”;

·     he has continued to allow Kikuko Pala to live in his house when she has returned from Japan because she has nowhere else to go and he could not “lock her out”;

·     he “depends on” his dogs and, if he were to become ill or have an accident, his only worry would be for his dogs, and he knows that Kikuko Pala would be there to take care of them.

Analysis

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

26. The applicant has at all material times been, and continues to be, legally married to Kikuko Pala 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” Kikuko Pala “on a permanent or indefinite basis”. In forming an opinion about the relationship between the applicant and Kikuko Pala 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

27.     The Tribunal is satisfied that:

·     the applicant and Kikuko Pala do not jointly own any real estate or any other major assets, nor do they have any joint liabilities;

·     there is no significant “pooling” of financial resources by the applicant and Kikuko Pala;

·     other than the joint legal obligation arising out of the insurance policy jointly entered into by the applicant and Kikuko Pala in respect to the latter’s car, neither the applicant nor Kikuko Pala owes any legal obligation in respect of the other;

·     the applicant pays for all the household expenses, including food, gas, electricity, telephone/internet, water consumption charges and Council rates;

·     Kikuko Pala pays the sum of $115 per week ($500 per month) to the applicant to cover her day-to-day living expenses;

·     Kikuko Pala does not pay any money to the applicant for her accommodation in the house jointly owned by him and his daughter;

·     the applicant and Kikuko Pala have held one joint bank account since 2002 but it has been inactive for the last 2 years and in that period the credit balance has been approximately $180.

28.     Although it is apparent that the applicant and Kikuko Pala have not been financially intertwined to a significant extent, it is clear that the applicant has provided financial support, by way of the provision of free accommodation, to Kikuko Pala throughout the period of their marriage.

Nature of the household

29.     The Tribunal is satisfied that:

·     the applicant and Kikuko Pala have, at all material times, shared the living areas, kitchen, bathroom and laundry of the house in which they reside, but that in or about 2007 they ceased sharing a bedroom and have, from that time, each occupied their own bedroom in that house;

·     at all material times Kikuko Pala has done most of the cleaning and clothes washing, the applicant has done all of the gardening and general maintenance and most of the shopping, and each of them has done their own cooking.

30.     In the Tribunal’s opinion there has, at all material times, been a substantial interrelationship and degree of co-operation between the applicant and Kikuko Pala in respect of the running of their household.

Social aspects

31.     The Tribunal is satisfied that, at all material times, the applicant and Kikuko Pala have not gone out socially together or engaged in any joint social activities, have not been invited out as a couple, and have not travelled overseas, or otherwise holidayed, together.

32.     As regards the assessment of friends and regular associates about the nature of the relationship between the applicant and Kikuko Pala, the only independent evidence before the Tribunal is the letter from Louise Nanne (see paragraph 23 above).  The Tribunal notes, however, that in that letter Ms Nanne merely refers to what the applicant has told her about his relationship with Kikuko Pala and she does not purport to make an objective assessment of that relationship.  The Tribunal also notes that the contents of that letter do not go so far as to assert, or even imply, that the applicant and Kikuko Pala have been living separately and apart under one roof.

33.     The Tribunal is satisfied that he applicant and/or Kikuko Pala have not, at any material time, actively held themselves out as married to each other, but the Tribunal is also satisfied that they have likewise not, at any material time, actively held themselves out as living separately and apart from each other albeit under one roof.

Sexual relationship

34.     The Tribunal is prepared to accept that the applicant and Kikuko Pala have not had a sexual relationship with each other since 31 May 2006 when she departed Australia (and did not return until 1 December 2006).

Nature of mutual commitment

35.     The applicant has known Kikuko Pala since April 2001 and they have been married since April 2002.

36.     Since the date of their marriage Kikuko Pala has visited, and spent a substantial amount of time in, Japan each year (see paragraph 24 above), but following each visit to Japan she has returned to Australia and has resumed living in the applicant’s house, most recently in February 2009.

37.     The applicant, according to his own evidence, married Kikuko Pala for companionship and he has consistently, throughout their marriage, encouraged her to become better educated and more self-confident and generally supported and provided help to her.  Each of them has indicated that they have provided support to the other in times of illness or personal crisis.

38.     The applicant has indicated that he regards it as beneficial to him for Kikuko Pala to continue to stay with him because of his heart condition and his age (see his letter of 15 May 2008 set out in paragraph 19 above) and that it is a comfort to him to know that, if he were to become seriously ill or have a serious accident, she would be there to look after his dogs (see his oral evidence set out in paragraph 25 above).  Furthermore, neither the applicant nor Kikuko Pala has taken any steps to obtain a divorce or a legal separation.  On the contrary, each of them has indicated that they do not intend to seek a divorce.  The Tribunal infers from this evidence that the applicant and Kikuko Pala see their relationship as likely to continue indefinitely.

39.     The applicant and Kikuko Pala have indicated that they “do not have much in common” with each other.  More specifically, the applicant, in his abovementioned letter of 15 May 2008, described their marriage as “totally non-functional” and stated that that has been the case for the last 5 years, and he attributed this to the difference in their ages and ethnicity and their being “entirely two different people”.  It appears from his evidence that the applicant has regarded himself as separated from Kikuko Pala since at least 2007 and, in that respect, he has not regarded their relationship as “marriage-like” from that time.

Conclusion

40. Having considered the whole of the evidence relating to the circumstances of the interpersonal relationship of the applicant and Kikuko Pala, 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 the applicant has, at all material times, been living separately and apart from Kikuko Pala 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 the applicant has, at all material times, been living separately and apart from Kikuko Pala on a permanent or indefinite basis: Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170, 176-177; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 555-556, 559.

41.     For the purpose of determining whether the applicant has been living separately and apart from Kikuko Pala on a permanent or indefinite basis, it is appropriate for the Tribunal to consider both the circumstances of their relationship from the date of their marriage to the date on which the applicant claims that they commenced to live separately and apart, and the circumstances of their relationship from the latter date.  Having considered the whole of the evidence before it, the Tribunal notes that there is some inconsistency as regards the claimed date of separation as follows:

·     in the “Assessment of Living Arrangements” form dated 5 September 2007, the applicant stated that the “marriage was irretrievably broken when she went back to Japan last year” (ie on 31 May 2006) (see paragraph 17 above);

·     in a statutory declaration made by Kikuko Pala on 28 September 2007 she stated that she was “separating from” the applicant and “leaving for Japan on 2 October 2007” (see paragraph 18 above);

·     in the “Relationship Details: Separated under one roof” forms dated 29 May 2008, the applicant and Kikuko Pala indicated that they separated from each other on 2 October 2007 (see paragraphs 20 and 21 above).

A possible explanation for this inconsistency, it seems to the Tribunal, is that the applicant first claimed that the marriage was “irretrievably broken” when Kikuko Pala left for Japan on 31 May 2006, and they both subsequently (following her return to Australia on 1 December 2006) claimed that they separated from each other when Kikuko Pala again left for Japan on 2 October 2007.  Having regard to the whole of the evidence before it, the Tribunal is prepared to regard the year 2007 as the relevant time from which the circumstances of their relationship should be considered and compared with the circumstances of their relationship from the date of their marriage to that time, for the purpose of determining whether a separation occurred at that time and they have since that time been living separately and apart under one roof.

42.     Having considered the whole of the evidence regarding the circumstances of the relationship between the applicant and Kikuko Pal in the period 2002 – 2007 and in the period from 2007 to date, the Tribunal makes the following observations:

·     the only apparent change in the financial aspects of the relationship is that their joint bank account has not been active since 2007;

·     as regards the nature of the household, the only significant change is that they ceased to share a bedroom in 2006 – 2007 and from that time they have occupied separate bedrooms;

·     as regard the social aspects of the relationship, it appears that they ceased to engage in joint social activities well before 2007 and there has not been any significant change in the social aspects of their relationship since then;

·     whereas they had a social relationship in the early period of their marriage, that apparently ceased when Kikuko Pala departed Australia for Japan on 31 May 2006 and did not resume following her return to Australia on 1 December 2006;

·     notwithstanding the abovementioned cessation of their sexual relationship in 2006, there has not been a significant change in the nature of their general commitment to each other throughout their marriage.

43.     The Tribunal accepts that, by reason of the significant cultural and age differences between them, the marriage of the applicant and Kikuko Pala has involved less intimacy, social interaction and commonality than would reasonably be desired to exist in a marriage.  It is clear to the Tribunal, however, that each of them has derived, and continues to derive, substantial personal benefits from their marriage, including, in the case of the applicant, companionship and supportive care in his old age, and, in the case of Kikuko Pala, financial and moral support and security, and that each of them has continued to demonstrate a substantial commitment to their marital relationship.  It is appropriate to add that there has been no suggestion that either of them has, at any material time, formed a close personal relationship with a third party of the opposite sex.  In short, the Tribunal is not satisfied that the marital relationship of the applicant and Kikuko Pala has broken down such that it can be said that they are living separately and apart from each other on a permanent or indefinite basis.

44. Accordingly, in the Tribunal’s opinion, the applicant has not, at any time from the date of his marriage to Kikuko Pala, lived, and is not presently living, “separately and apart from” Kikuko Pala “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the Act.

45. The Tribunal concludes, therefore, that the applicant has at all material times been, and is presently, a “member of a couple” (as defined by s 4(2)(a) of the Act) for the purposes of the Act.

Decision

46.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:         ...............[sgd D Brodie]........................

Associate

Date of Hearing  20 August 2009
Date of Decision  2 September 2009
Representative of the Applicant            Self-represented

Representative of the Respondent       Mr P Maishman
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