Pelka and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1868
•16 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1868
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600175
GENERAL ADMINISTRATIVE DIVISION ) Re MEE CHIN PELKA Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President S D Hotop
Ms L Tovey, MemberDate16 October 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[Sgd S D Hotop].........
Deputy President
CATCHWORDS
SOCIAL SECURITY – carer payment – applicant qualified for carer payment – rate of carer payment payable to applicant – applicant cohabited with male person to whom not legally married – consideration of all circumstances of interpersonal relationship of applicant and other person – financial aspects – nature of household – social aspects – no evidence of sexual relationship – nature of commitment to each other – weighing and balancing factors pointing towards and against marriage-like relationship – relationship between applicant and other person a marriage-like relationship – 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
REASONS FOR DECISION
16 October 2007 Deputy President S D Hotop
Ms L Tovey, MemberIntroduction
1. This matter is again before the Tribunal following a successful appeal by the applicant, Mee Chin (also known as Marilyn) Pelka (“Ms Pelka”), to the Federal Court of Australia against a decision of the Tribunal made on 8 February 2005: see Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
2. Ms Pelka received carer payment under the Social Security Act 1991 (Cth) (“the Act”) at the rate payable to a single person from 11 July 2000 to 23 March 2003 (“the relevant period”).
3. On 24 March 2003, however, an officer of Centrelink decided that, for the relevant period, carer payment was payable to Ms Pelka at the (lower) rate payable to a “member of a couple”, on the basis that, for the whole of that period, she was living in a “marriage-like relationship” with Michel Kuhl (“Mr Kuhl”). The officer also decided that Ms Pelka had consequently received an overpayment of carer payment in the amount of $29,411.14 in the relevant period and that that amount was a debt due by her to the Commonwealth which should be recovered in full from her. That decision was affirmed by an Authorised Review Officer within Centrelink on 14 May 2003.
4. On 8 October 2003 the Social Security Appeals Tribunal (“SSAT”) decided that Ms Pelka was a “member of a couple” for the whole of the relevant period and that she had been overpaid carer payment in that period, but that the amount of the debt due by her to the Commonwealth (being the amount of the overpayment of carer payment) should be recalculated on the basis of its findings regarding the amount of Mr Kuhl’s income for each of the financial years in the relevant period.
5. On 6 November 2003 Ms Pelka made an application to the Tribunal for review of the decision of the SSAT, and on 8 February 2005 the Tribunal affirmed the decision of the SSAT. The Tribunal’s decision was, however, set aside by the Federal Court of Australia on 14 June 2006 and the matter was remitted to the Tribunal for reconsideration according to law.
The Issue and the Tribunal’s Determination
6. Ms Pelka concedes that, in the event that the Tribunal were to determine that she was a “member of a couple” during the relevant period and was, accordingly, overpaid carer payment in that period, the amount of that overpayment would be a debt due by her to the Commonwealth which would be recoverable from her.
7. The sole issue for the Tribunal’s determination is, therefore, whether Ms Pelka was a “member of a couple”, for the purposes of the Act, in the relevant period.
8. For the reasons which follow, the Tribunal has determined that Ms Pelka was a “member of a couple”, for the purposes of the Act, for the whole of the relevant period.
The Factual Background
9. The relevant background facts, which are not in dispute, are as follows.
10. Ms Pelka, who was born in Malaysia in 1948, first arrived in Australia in 1972. She subsequently married but she and her then husband separated in or about 1986 and they were divorced in November 2003.
11. Ms Pelka first met Mr Kuhl at a party in 1985.
12. Ms Pelka and Mr Kuhl departed Australia together on 21 June 1988 and returned to Australia together on 2 July 1988. They subsequently had 12 overseas holidays together between 1992 and 2001.
13. In 1988 Ms Pelka purchased a 2-bedroom home unit in Maylands (“the home unit”). She and Mr Kuhl cohabited in the home unit from 1988 until September 2004.
14. On 7 July 1999 Ms Pelka and Mr Kuhl opened a joint account with Home Building Society. On 24 September 2004 the details of that account were changed whereby Mr Kuhl became the sole holder of the account and Ms Pelka became a “third party” signatory.
15. In 2000 Ms Pelka became the carer of Colin Whittaker (“Mr Whittaker”).
16. In July 2000 Ms Pelka claimed carer payment under the Act in respect of Mr Whittaker and she received carer payment, at the rate payable to a single person, from 11 July 2000 to 23 March 2003.
The Evidence
17. The evidence before the Tribunal comprised:
· the documents (T1-T84, pp 1-257) lodged with the Tribunal by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· the transcript of the previous hearing before the Tribunal in this matter on 23 November 2004 (Exhibit A1);
· witness statements of Ms Pelka, Mr Kuhl and Mr Whittaker (Exhibits A2-A6);
· documents provided to Ms Pelka’s representative by Home Building Society (Exhibit A7);
· additional documents tendered by the respondent (Exhibit R1); and
· the oral evidence of Ms Pelka and of Mr Kuhl.
The Evidence of Ms Pelka
18. Ms Pelka tendered in evidence her 2 witness statements, one dated 25 October 2004, the other dated 13 February 2007.
19. The contents of Ms Pelka’s statement dated 25 October 2004 are as follows:
“1.I live at… in Warwick in premises owned by Mr Colin Paul Whittaker and I am his carer.
2.I have known for some years that Mr Whittaker is blind.
3.I was a married person but separated from my husband some years ago but continued to live in the matrimonial home until about 1988. The marriage broke down in 1986 approximately.
4.I was finally divorced in November 2003.
5.In or about 1988 I purchased a property at… Maylands.
6.About that time I met a man named Michael (sic) Kuhl at a party but was still living in the then family home.
7.I also met Mr Kuhl’s parents who asked me to become Mr Kuhl’s Godsister and Mr Kuhl became my Godbrother and I agreed to that.
8.This is a regular occurrence between persons in Chinese culture.
9.At this time I had intended to take an extended overseas holiday to Singapore.
10.Because I had just bought the unit it was agreed between Mr Kuhl and myself that Mr Kuhl would ‘baby sit’ the unit whilst I was away.
11.Mr Kuhl agreed to be responsible for the phone and electricity/gas accounts and to that end the accounts for those utilities were put in his name. Mr Kuhl completed the necessary documentation for those services and I did not see them.
12.Mr Kuhl had previously lived in Crawley where he shared a property with a lady before he agreed to house sit my unit.
13.I had purchased the unit on my own and I paid the deposit and all the mortgage payments and eventually paid the unit off by payment of a lump sum.
14.My income was from Kimberley Nursing Home where I had worked for some 14 years.
15.As a result of my marriage break down I also received monies from a property settlement.
16.I pay all the outgoings on the premises at… Maylands.
17.Although I went on what I thought was to be an extended holiday it later turned out to be somewhat shorter.
18.The unit was a 2 bedroom property and as such I had some furniture and Mr Kuhl had a quantity and I furnished my bedroom, Mr Kuhl furnished his and the balance was used jointly each contributing.
19.When I returned early from the holiday Mr Kuhl was without alternative accommodation – having left Crawley – and it was agreed between us he would stay in my unit and continue to pay the phone and light/gas accounts.
20.We agreed he would pay no rent but there was to be a barter-like arrangement as to holidays. That arrangement was that he would pay for an overseas holiday for me on a regular but undefined period.
21.The living arrangements were that we would each have our own bedroom but share the other facilities and that situation was successful between the two of us.
22.The arrangements as to the travel as to be barter situation (sic) were put in place and on the occasions we travelled overseas because of cost savings we booked accommodation that was twin share – which meant we shared the same accommodation but had 2 single beds contained in it.
23.There was one exception however. If the holiday was in Singapore I would stay with my mother who lives there and Mr Kuhl would make his own arrangements.
24.When overseas each of us did our own shopping independent of each other.
25.When overseas on occasion when we ate together sometimes I would pay and sometimes Mr Kuhl would pay. This was done on an alternate basis purely for convenience.
26.I do not and never have had a sexual situation with Mr Kuhl.
27.I have not had a relationship of a sexual nature with any person since my marriage broke down.
28.My only relationship with Mr Kuhl is that of Godbrother and Godsister.
29.I do not share a bank account with any person or persons or group of persons including Mr Kuhl.
30.Mr Kuhl does not share a bank account with me and never has done so.
31.There is no social activity between Mr Kuhl and myself save for the very occasional visit to a cinema but such outings are rare – maybe once in 6 months.
32.I have never told anyone I was in a relationship with Mr Kuhl and I have never held myself out as having been married to him or as living in a de facto relationship with him.
33.I do not do Mr Kuhl’s washing nor does he do mine. We do use the same washing facilities but at different times.
34.We do not cook for each other.
35.We do not share exclusive co-habitation.
36.Mr Kuhl has a series of lady friends and occasionally says he is going to see this lady or that lady. I do not enquire about it.
37.On occasions Mr Kuhl does not come home and I am not aware where he has stayed.
38.There are occasions Mr Kuhl does not come home for more than one consecutive nights.
39.I have no knowledge what he does on those occasions and I have no right or desire to know of such details.
40.I do not want to know those details and I really don’t care because Mr Kuhl can do as he likes and I have no reason to want to know.
41.On occasions I stayed (prior to 20.09.04) at the home of Mr Whittaker for whom I care. I now live at Mr Whittaker’s premises permanently at… in Warwick.
42.I do not tell Mr Kuhl I will not be home on such occasions nor do I tell him where I’ll be.
43.Until recently I had stayed at Mr Whittaker’s premises mainly over 1 night but there have been occasions when I’ve stayed more than 1 night. It’s none of Mr Kuhl’s business where I am or what I do.
44.Most of the time we are not in the unit at the same time except of course when we are asleep in our own bedrooms. My care duties require odd hours.
45.Mr Kuhl gives me none of his wages or salary and I am completely financially independent of him.
46.I give Mr Kuhl no financial assistance or monies of any form.
47.From 20.09.04 however I have rented my unit to Mr Kuhl as I now reside at the address of Mr Whittaker.
48.Up until quite recently Mr Kuhl had owned his own motor vehicle. Mr Kuhl told me he had lost his Motor Vehicle Driver’s Licence for a period and he sold his car.
49.Mr Kuhl told me during the period he was without his licence he used public transport to go to and from work.
50.I owned a motor vehicle and when Mr Kuhl got his licence restored he offered to buy my car from me.
51.Mr Whittaker has a motor vehicle which I had exclusive use of for 24 hours a day to perform my carer duties.
52.My own car had been garaged at Mr Whittaker’s premises for the 3 year period I had been caring for him. I used to give the car a run on occasions just to keep the battery charged up.
53.Because I have the use of Mr Whittaker’s vehicle I decided I would sell my car and I agreed a price with Mr Kuhl.
54.Mr Kuhl makes payments to me for the car on a regular basis and he has now insured that car in his name.
55.I have not transferred ownership of that car to Mr Kuhl and I do not propose to until he has paid me for it in full.
56.Prior to this purchase arrangement Mr Kuhl has never had the use of my car on any occasion.
57.I have never lived in a marriage-like relationship with Mr Kuhl and I never intend to do so.
58.I am aware Mr Kuhl has signed and/or completed some documents in which he has said on those forms that we are in a de facto relationship or such similar type words.
59.I am not responsible for any such statements made by Mr Kuhl whether they be express or implied.
60.There is no evidence I have ever used such words or indicated to any person that such a situation exists between us. I opened a bank account in the Commonwealth Bank in 1998 and told that organisation I was married. That was true. I was not divorced until November 2003.
…” (Exhibit A2)
20. The contents of Ms Pelka’s statement dated 13 February 2007 are as follows:
“…
2.I reside at … Warwick in Western Australia.
3.I have given evidence previously in this matter.
…
6.… I said I had no joint bank account with my Godbrother, Michael (sic) Kuhl.
…
8.I in fact had a joint bank account with Mr Kuhl but that joint bank account was not a shared bank account as far as usage of the account was concerned….
9.…I had forgotten completely about that account which had been opened on 07.07.99.
…
11.I had simply forgotten about that account because I had never used it nor had I any need to use it.
12.When I was reminded of the account because of some enquiries being made by Centrelink that matter was recalled to my memory.
13.My Godbrother, Michael (sic) Kuhl, had had several contacts with the law because of his excessive drinking and driving and I was aware of this.
14.Mr Kuhl had told me he was concerned if he were to have any further contacts with Police because of those circumstances.
15.Mr Kuhl had some fears he may be retained (sic) before being released from custody if he were again picked up in similar circumstance and may well require a cash security before being bailed out.
16.He also feared – if further convicted – that he may have to pay a fine before he could be released.
17.I agreed the account could be put in both names so I could access his monies for such purposes if needed.
18.I had never made any deposits of my own money into the account and I had never withdrawn money at any time for any purpose whatsoever.
19.I have never deposited any monies into that account on behalf of or at the request of Mr Kuhl nor have I withdrawn any monies for My Kuhl’s purposes.
20.I have become aware that I was issued with a plastic card on the account…with Home Building Society and that card number was … 5151. I am also aware Mr Kuhl had a plastic card as well, and the number of his card was similar to mine except the last four digits are 5128.
…
22.… I have never operated on that account either by way of use of a bank card or a written deposit and withdrawal.
23.All transactions on that account using a card have been by Mr Kuhl using card No 5128.
…
25.In 2004 my name was removed from the account… and that account remained in the name of Michael (sic) Kuhl alone.
26.On 24.09.04 I became a Third Party signatory to that account for the same reasons as set out in paragraphs 13 to 17 herein.
…” (original emphasis) (Exhibit A3)
21. In her oral evidence Ms Pelka confirmed that:
·the contents of her witness statement dated 25 October 2004 are true and correct with the exception of paras 29 and 30 of that statement;
·the contents of her witness statement dated 13 February 2007 – including her explanation of the incorrect statements made in paras 29 and 30 of her earlier statement – are true and correct.
22. In cross-examination Ms Pelka acknowledged that, on 24 September 2004, she had signed a Home Building Society form for the purpose of being appointed by Mr Kuhl as a “Third Party” to operate on the account which was formerly in the joint names of Mr Kuhl and herself but which was then in the name of Mr Kuhl only. When it was put to her that this was only 2 months before the previous Tribunal hearing on 23 November 2004 when she gave evidence that she had never had a joint bank account with Mr Kuhl, she reiterated that she had never operated on that account and that she “might have forgotten it” (Transcript, p 20).
23. Ms Pelka agreed that she moved from the home unit to Mr Whittaker’s house in Warwick in September 2004 and that, at about that time, she ceased to be a joint holder with Mr Kuhl of the abovementioned Home Building Society account and instead became a Third Party signatory because Mr Kuhl would henceforth be paying her rent of $55.00 per week for the home unit instead of paying for her overseas holidays as he had previously done. When it was put to her that Mr Kuhl had previously paid for her overseas holidays out of the proceeds of that account, she reiterated that she did not know which account he used to pay for their holidays and she added that the abovementioned Home Building Society account “was for him, when he got into trouble” (Transcript, p 21).
24. Ms Pelka confirmed that she first met Mr Kuhl at a party in 1985 and she agreed that she thereafter met him occasionally for coffee because she liked and trusted him and wanted to be friends with him.
25. Ms Pelka confirmed that she decided to purchase the home unit in 1988 and that she made that purchase herself without any assistance from Mr Kuhl. She also confirmed that she then moved into the home unit by herself. She agreed that she was then planning to go overseas and she asked Mr Kuhl to “house sit” the home unit while she was away. She said that she then went to Singapore to visit her mother. Ms Pelka was referred to official records which indicate that:
· she and Mr Kuhl departed Australia on 21 June 1988 on the same flight and returned to Australia on 2 July 1988 on the same flight (T32, pp 84, 91);
· she became the registered proprietor of the home unit on 2 December 1988 (Exhibit R1, p 107);
· she departed Australia on 17 July 1990 and returned to Australia on 24 August 1990 (T32, p 80).
Ms Pelka then agreed that:
·she and Mr Kuhl travelled overseas together in 1988;
·she next travelled overseas in July 1990 when she travelled to Europe on her own;
·she and Mr Kuhl moved into the home unit together in December 1988;
·the first time that Mr Kuhl lived in the home unit on his own was when she travelled to Europe in July 1990.
26. Ms Pelka said that, for the whole of the period from 1985 to 2003, she was working either full time or part time, and that during that period she was not at any time financially dependent on Mr Kuhl; nor during that period did he support her financially at any time.
27. Ms Pelka acknowledged that Mr Kuhl had nominated her as the beneficiary of his superannuation and had described her, in documentation completed by him for that purpose, as his “de facto”. She explained that he had so described her in order that, if anything happened to him, she would be paid the superannuation moneys “without any complication”. She added that she did not know anything about this “until it came up on the Centrelink file”.
28. It was put to Ms Pelka that, in the transcript of the previous Tribunal hearing on 23 November 2004, she is recorded as having said, in the course of her evidence-in-chief, in relation to Mr Kuhl:
“… he always tells me I’m the one that he always feels close to …” (Exhibit A1, p 40)
Ms Pelka initially denied that she had said that, and added that she said that she and Mr Kuhl “are close in spiritual” (Transcript, p 34). Asked whether Mr Kuhl had explained to her why he felt close to her, Ms Pelka responded:
“Maybe in a spiritual way…you can feel close to somebody… and you trust somebody more than you trust other people.” (Transcript, p 34)
29. Ms Pelka confirmed that she has had “a lot of involvement with” the Chinese Club and she added that she has done “a lot of singing and dancing” there. She denied, however, that Mr Kuhl had ever gone with her to the Chinese Club or accompanied her when she went to dinner with her friends. She also confirmed that she was a ballroom dancer but she denied that Mr Kuhl had ever come to watch her dance.
30. Ms Pelka confirmed that she and Mr Kuhl celebrated New Year, Christmas and their birthdays together and gave small gifts to each other on those occasions.
31. It was put to Ms Pelka that she and Mr Kuhl had travelled overseas together on 12 occasions and visited various countries including Singapore, Malaysia, France, Switzerland and the United States of America. Ms Pelka acknowledged that and added that she has “got very bad direction” and that she “get(s) lost easily” and that, if she is overseas, she likes “to really have somebody that knows the place” (Transcript, p 38). Ms Pelka said that Mr Kuhl “plans everything” regarding their overseas trips and “mention(s) it to [her]” but that she doesn’t “plan with him” as she is “only a guest” (Transcript, pp 38-39). Ms Pelka was questioned about the planning of their trip to the United States of America and her evidence was as follows:
“When you were planning to go to America did you sit down and discuss what you might like to see in America? America is a very big place. Did you talk about where you would go and what you would see in America? --- Yes, when we get into the country, then we see – we see a few places. We mention about where we want to go and things like that.
Yes?---Yes. I didn’t really plan it on my own. I don’t – I am not saying what this planning. You go somewhere. You discuss it. You talk about it.” (Transcript, p 39)
32. Ms Pelka confirmed that she had not made a will and added that she was “still thinking about it” (Transcript, p42). As regards her superannuation, she said that she has nominated her 2 sons (aged 33 and 30 years) as the beneficiaries.
33. Ms Pelka denied that her sons had ever met Mr Kuhl. She also denied that she had ever introduced Mr Kuhl to her mother in Singapore when they travelled to Singapore together, or that she had ever discussed Mr Kuhl with her mother when she visited her. Asked whether there was a reason why she did not want her mother to meet My Kuhl, Ms Pelka responded:
“No, no reason. Because he doesn’t speak Chinese and my mum doesn’t speak English.” (Transcript, p 43)
34. Ms Pelka was questioned about the circumstances in which Mr Kuhl’s parents became her godparents and she and Mr Kuhl became godsister and godbrother. She said that she first met Mr Kuhl’s parents (who lived in France) in 1985 when they were visiting Perth. She said that they next visited Perth in 1988 and during that visit they stayed with her and she spent quite a bit of time with them and became close to them. Her evidence continued:
“Who first raised the idea of becoming a godparent and godchild?---I think I did.
How did you explain it to them, do you remember?---No. They always say that – what you call it, said – I said, is my custom, you know, when you like somebody and especially my mum is not here and what - this is, what you call it – I don’t know how to explain it because it’s quite difficult to explain it, that when you like somebody enough and they - I think they also mentioned it – I believe that you’ve got a custom that you can have, like – it’s not adoption but you can be, like, a godparent and then you can make it official to – you know, to have somebody that become official to bring somebody to the family.
Yes?---That is quite – is quite often, is quite a lot being done in the Asian country. I was just mention it a few time and it was just by talking, they say, ‘Well, why don’t you do that?’ That’s how it happened.” (Transcript, p 46)
She said that Mr Kuhl’s parents, she and Mr Kuhl discussed this matter together and that they made the arrangement regarding becoming godparents, godsister and godbrother, respectively, together. She said that none of them expected anything from the others as a result of their entering into that relationship, and she described that relationship as “a bit of a spiritual bond” (Transcript, p 50). Ms Pelka confirmed that she thereafter spoke to Mr Kuhl’s parents in France by telephone approximately every 2 months.
35. Ms Pelka agreed that, for the duration for the period from 1988 to 2004, she was happy with her, and Mr Kuhl’s, living arrangements and she had no intention to change them.
36. In re-examination Ms Pelka was asked whether Mr Kuhl was “any more special to [her] than any other friend [she] might have had at, say, the ballroom”, to which Ms Pelka answered: “No” (Transcript, p62).
37. In answer to questions from the Tribunal, Ms Pelka gave the following evidence;
“Just in relation to the godbrother/godsister relationship, can I ask you: what makes that sort of a relationship different to any other sort of friendship-type relationship, if I can call it that? What makes that relationship to you different? If you can just explain it to us?---Just I don’t have – my brother is not here with me, and I think it’s nice to have, like, a family. I’m all here by myself. My brother was not here, nobody here, I’m only alone here, so I thought it would be nice to have somebody that you can come to as a family member.
Is that how you regard Mr Kuhl?---Pardon?
Is that how you still regard Mr Kuhl?---Yes.” (Transcript, p 68)
The Evidence of Mr Kuhl
38. Two witness statements of Mr Kuhl, one dated 25 October 2004, the other dated 14 February 2007, were tendered in evidence.
39. The contents of Mr Kuhl’s statement dated 25 October 2004 are as follows:
“1.I reside at … Maylands in premises owned so I understand by Ms Marilyn Pelka.
2.I had previously shared premises in Crawley prior to moving to Ms Pelka’s premises.
3.Prior to moving to Maylands I had met Ms Pelka at a social gathering.
4.Subsequent to that my parents met Ms Pelka and as a result asked if I was prepared to be a Godbrother to Ms Pelka and she would be a Godsister to me. I agreed to that arrangement.
5.It is not unusual in the Chinese community for such arrangements to be made.
6.Subsequently I knew Ms Pelka had purchased a property at … Maylands and I also knew she intended to take a long overseas holiday.
7.Eventually it was arranged I would look after the unit for her and live there rent free whilst she was away. I was to pay the phone and power bills and to that extent those accounts were opened in my name.
8.I had some furniture which I moved to the Maylands premises. There was other furniture there which I was told belonged to Ms Pelka and I furnished my own bedroom. It appears Ms Pelka furnished her own bedroom. There was some common furniture we both shared.
9.Ms Pelka was a married lady who had recently left a broken marriage so she told me.
10.Ms Pelka went overseas and returned after a short period of time. I am not aware why she came back so soon.
11.At that stage I had no other accommodation available to me and eventually it was agreed I would stay to share the premises at Maylands.
12.It was agreed I would pay no rent but would continue to pay all the phone and light accounts.
13.Rather than pay rent it was agreed that when I went overseas on holiday I would also pay for an overseas holiday for Ms Pelka. That arrangement included air fares and accommodation.
14.During the course of the arrangements overall I have lived my own life.
15.There has never been any relationship between Ms Pelka and myself of any kind.
16.I have never had a sexual encounter with Ms Pelka let alone a sexual relationship.
17.I don’t cook meals for Ms Pelka even though I work as a chef.
18.Each of us does our own washing and cleaning.
19.I have my own bank accounts and I don’t share any bank account with Ms Pelka.
20.I am not aware of Ms Pelka’s banking arrangements.
21.As a result of the arrangements set out in paragraph 13 of this document I do not and never have, up until 20.09.04, given Ms Pelka any money or financial assistance other than disclosed in this document.
22.There have been occasions when applying for a job for example that I have said I was in a de facto relationship or had a spouse. That has been done to show to prospective employers or the like that I was a stable person.
23.I am not able to recall any instance that I have ever said that Ms Pelka was my spouse or de facto. I can’t recall ever naming any person in particular as fulfilling that part of my life.
24.In any case I have never told Ms Pelka that I had said anything like that about her. I never asked her permission to do so and I had no need to because she has never been my spouse or de facto.
25.I do not sleep exclusively at Ms Pelka’s premises. Over the years I have had a number of lady friends during the course of the time I had lived in Maylands.
26.I have stayed at the premises of different lady friends on occasions. I have never told Ms Pelka where I was and she had no right to know. I have stayed with those ladies for more than 1 night on occasions.
27.It is always the case I do not tell Ms Pelka I will be away overnight because I don’t always know myself that I am going to be away from Maylands overnight. Even if I did know I wouldn’t tell her because I have no responsibility to do so and she has no right to know.
28.When away overseas with Ms Pelka I had booked twin share rooms purely for financial reasons. When on those holidays we went our own ways as to shopping excursions or tours.
29.When overseas Ms Pelka used her own financial resources for everything except air fares and accommodation. On occasions if we did eat together overseas we would each pay for our own meal or alternatively I would pay the whole meal on an occasion and on the next occasion she would pay. It was purely done that way for convenience and it generally averaged out satisfactorily.
30.At Maylands we shared the use of kitchen, laundry and some communal furniture and kitchen utensils. Each of us had brought various items of furniture to the unit but we each furnished our own bedrooms.
31.Each of us owned our own cars which we did not share.
32.I had fairly recently lost my driver’s licence and as a result of that sold my car. I used alternative ways to get to and from work – buses, taxis etc.
33.When I regained my licence I needed to buy another motor vehicle.
34.I knew Ms Pelka had a car she was not using because she drove a car the person she cared for provided. Consequently I asked Ms Pelka if she wanted to sell her car.
35.Ms Pelka agreed eventually to sell her vehicle to me and I am buying it from her and when I am finished paying for it she will transfer the car to me.
36.As the car is being bought by me I am responsible for registration, insurance and maintenance of the vehicle.
37.Let me make it quite clear. I have never been in a relationship with Ms Pelka let alone a marriage-like relationship and I have never pooled or shared my resources with Ms Pelka except as disclosed herein.
38.Since 20.09.04 I have become a tenant and sole occupier of the premises at… Maylands and I pay rent to Ms Pelka.
39.The arrangements as to overseas travel/holidays are now no longer in existence.
40.I understand Ms Pelka is living at the premises of the man she cares for. I do not know the address nor do I have any contact details of those premises.” (Exhibit A4)
40. The contents of Mr Kuhl’s statement dated 14 February 2007 are as follows:
“1.I reside at … Maylands and am employed as a chef.
2.I have known Mee Chin Pelka for some time over eighteen years.
3.I have previously given evidence in this matter on 23 November 2004.
…
6.Since I gave that evidence I have become aware of some matters to do with a joint bank account with Ms Pelka.
7.… when asked if I had shared a bank account with Ms Pelka and I answered ‘No’.
8.I had indeed owned a bank account with Home Building Society (Home). That account No… was held in joint names with Ms Pelka and on 07.07.99 that account was closed and transferred to Account No… with Home.
9.Although the account was in joint names the account was not Ms Pelka’s. Her name was on the account purely for my convenience. That is the reason I answered NO when asked the question.
10.Up until about 2003 I had been convicted on multiple occasions of drink driving offences and I was concerned about my position if I were to be further charged and convicted and required a cash component of any bail application or to pay any financial penalty before being released…
11.I had the joint account with Ms Pelka for such an emergency so she could access cash from my monies if it became necessary.
12.It was never envisaged that Ms Pelka would act on that account except for the stated purpose and indeed she was not required to do so.
13.About mid 2004 Ms Pelka’s name was removed from that account but the account number was unchanged and in my name alone.
14.On 24.09.04 Ms Pelka became a third party to that account … for the same reason as set out in paragraph 10 herein.
15.When the account … was opened two plastic cards were issued on the account. I was allocated No… 5128 (5128) and Ms Pelka No… 5151 (5151).
…
18.On each and every occasion that there has been a purchase of any kind by way of use of a credit card the card Number 5128 has been used absolutely exclusively. That is the card number allocated to me.
19.In all the time since the opening of the account … there has been no entry (debit or credit) using the card Number 5151 allocated to Ms Pelka.
…
22.Since Ms Pelka has had access to this account … I have never had the need for her to access the account for the purpose which was intended and there is no indication that she has accessed the account for any reason.
23.Ms Pelka has never made any deposits into the account either on my instructions using my funds and certainly not using her own funds. My banking business is absolutely nothing to do with Ms Pelka save for the one matter.
…
25.I still reside in premises owned by Ms Pelka and pay rent to her. I am still responsible for the utilities at the premises.” (Exhibit A5)
41. In his oral evidence Mr Kuhl confirmed that the contents of his 2 abovementioned witness statements are true.
42. As regards the Home Building Society account held jointly by him and Ms Pelka, referred to in his statement of 14 February 2007, Mr Kuhl said that he never asked Ms Pelka to “action” that account and she never did. Asked whether he had ever discussed that account with Ms Pelka after it was opened in 1999, he responded: “Absolutely not”. He added:
“I never discussed any matters, you know, of finances, you know, with her whatsoever.” (Transcript, p 71)
43. Mr Kuhl was asked to elaborate on his reference, in para 4 of his statement of 25 October 2004, to the arrangement whereby he and Ms Pelka became godbrother and godsister. His evidence was as follows:
“What do you understand the situation of a godbrother/godsister to be?---Like brother and sister except you know again, like stated in that first document which is four years ago whatsoever, my parents you know kind of loved Marilyn when they met her and asked my advice if I would accept her in order to be my sister, which is a kind of tradition, you know, which is not to say legal but it is a kind of a tradition and a kind of understanding between members of the family and we used to respect each other as such.” (Transcript, p 75)
44. Mr Kuhl also gave the following evidence-in-chief:
“Have you ever lived in any accommodation prior to the Maylands situation with Ms Pelka?---No, never.
Prior to moving in to Maylands, where were you living? If you can remember?---I was still living in Maylands but on Peninsula Road---
Right. Had you also lived previously in the Crawley area?---That was – yes, some months before we had another – another flat or accommodation that was in Crawley, yes---
In Crawley, did you live alone?---I was living with a woman.
A lady. And in Maylands before you moved into Ms Pelka’s unit, were you living alone?---The flat where I was living before I was alone, yes.
You were alone. All right. Have you ever spent a night in Ms Pelka’s bedroom?---No, never.
Has she ever spent a night in your bedroom?---No, never.
Other than visits to a film on a couple of occasions, if I can call it that, have you ever been out with Ms Pelka?---No, never.
Have you ever been to a Chinese club with her?---Chinese club? No.
No?---No.
So is the situation then that other than the film we speak of, you have not been out with Ms Pelka---?---No.
--- in the years that you’ve been in that unit?---No.
All right. Has she ever discussed her financial affairs with you?---No, never.
At any stage – you know that she’s now divorced? Do you know she’s now divorced?---Divorced I don’t know but I know that she’s married.
Right. Did she ever discuss with you the fact that she was going through a divorce?
---No.
No. Did she ever seek any comfort from you at any time? When I say comfort, did she want to sit down and cry on your shoulder or something?---No. No, never.
Never?---No. She never discussed anything, you know, with me, no, for that matters.
Is it fair for me to say that your association with Ms Pelka has purely been as a god-brother and god-sister relationship?---That’s right, yes.
And it is part of the Chinese culture?---That’s right.
And that matter was discussed with your parents and Ms Pelka and you?---That’s right.” (Transcript, pp 76-77)
45. In cross-examination Mr Kuhl acknowledged that, in the period from April 2000 to December 2001, he had used the abovementioned Home Building Society joint account to pay various expenses incurred in relation to overseas travel he did with Ms Pelka. His evidence continued:
“So would you agree with me after seeing those entries, Mr Kuhl, that this account was being used to meet the travel obligation that you had with Ms Pelka? There was an arrangement between you, wasn’t there, whereby you didn’t have to pay rent but her expectation was that you would pay for holidays?---She was not expected. She never expected. That was me, I never discussed it with her whatsoever. No, when I was going on holidays, I was always asking, okay, you want to come? You come. That way it was handled.
So are you saying there wasn’t a barter arrangement whereby you wouldn’t pay rent but you would provide her with holidays? No, no, it was not an arrangement. It was me who just came, you know, and said, you know, look, I’m going on holidays, if you want to come, you my friend, you my godsister, you come, you’re welcome, that’s all. It was not an arrangement. It’s nothing been that’s written or verbally said, you know, that I said… don’t pay, you know, anything because I do pay rent anyway, and said, you know, well, I’m going to do this, and I give you that.” (Transcript, p 79)
He agreed that he did not start paying rent to Ms Pelka until September 2004 but he did not agree that his not paying rent to Ms Pelka and his paying for her overseas holidays involved an “arrangement” between them or an “obligation” on his part. He agreed that he could have lived in the home unit without paying rent to Ms Pelka and without paying for her overseas holidays because he paid “all the utilities of the unit”. His evidence continued:
“Can I ask you then if you didn’t see a trade off between no rent and holidays, why then did you take Ms Pelka on holidays with you on 12 different occasions?---Because she is my godsister, she is my friend. I have no one else, why not. She was, let’s say, you know, close by, I could have had, you know, another friend, or another girlfriend, you know, it would have been exactly the same. It was not because it was Marilyn Pelka, it could have, you know, Julie Davis.
So when you were speaking to Mr O’Toole, you talked about having a lot of lady friends over that period of time you were with Ms Pelka---Yes, lots and lots.
Why wouldn’t you take one of those on holidays with you, why did you always take Ms Pelka?---Because Marilyn Pelka is my godsister. The other ones were just, let’s say, flirts.
So this – Ms Pelka was – had a special sort of relationship with you, and you felt you’d like to take her on holidays?---Well, let’s not use the word relationship, but is friendship.” (Transcript, p80)
46. Mr Kuhl confirmed that he met Ms Pelka at a party in 1985 and that they then used to meet for coffee from time to time. His evidence continued:
“Okay, can you explain to us what it was about Ms Pelka that kept you interested that you wanted to maintain contact with her after the party?---Being Asian.
Do you find her attractive – an attractive lady?---Didn’t bother me in those days.
Okay?---But being attracted, it’s a very easy word and a very easy thing to say, I’m very attracted very easily to anything on two legs with a skirt, they don’t blame the French for nothing.
…
All right, so she did have some physical attraction for you and was she also an interesting person?---As I said it’s not Marilyn Pelka that I am talking about, you refer to her as her because that is the case, fair enough, but when I am answering your questions is to woman in general, it was not because it was Marilyn Pelka.
Okay, so---?---She just happened to be there, you know, at this time of my life and I say, well, why not.” (Transcript, p83)
47. Mr Kuhl was questioned about the circumstances in which he commenced living in the home unit. His evidence was as follows:
“Now do you recall when Ms Pelka first started living in the Maylands unit? About what time?---I don’t know when she bought it or – whatsoever. That was in 1988.
1988, yes. Do you recall roughly when she discussed with you house-sitting the unit while she went overseas?---Sorry, I don’t get it.
Well, my understanding is that after she purchased the unit and had moved in she decided she wanted to go on a holiday somewhere, to Singapore?---Yes.
To Singapore, I think, to see her mother?---Yes.
The arrangement we understand was that you would look after the unit, you would live in the unit, house-sit it while she was away?---Yes. Yes, yes.
Do you recall that?---Yes.
Do you recall when you discussed with her that you would house-sit?---I don’t understand the question, sorry.
Well, you must have made an arrangement---?---I remember. I remember, yes. I remember that discussion that we had, you know, ‘You go away, I look after your place’. Yes.
But you don’t remember the time when it happened, when the discussion---?---No. I remember again, you know, that it was during these days, you know, but I can’t remember when exactly.
Yes. Do you recall when you first started living in the Maylands unit?---Yes.
What month and year was it?---The month I don’t know, ’88 was the year.
It was 1988. Okay. Do you remember Ms Pelka going overseas?---Yes.
Yes?---I can’t remember when.
Yes?---But it must have been again, you know, during these periods.
Yes. Did she go away for as long as she said she would? Do you remember?---I don’t know, I don’t remember.
You don’t remember. You don’t remember her telling you how long she would be away? No? You don’t remember if she came back early or not? All right. In 1988 do you recall having an overseas holiday with Ms Pelka?---1988? I can’t remember, I remember ’92 was probably the first time.” (Transcript, pp 86-87)
Mr Kuhl was then referred to official records which indicate that he and Ms Pelka departed Australia on the same flight on 21 June 1988 and returned to Australia on the same flight on 2 July 1988. He then accepted that they “must have” travelled overseas together in 1988. He was next referred to official records which indicate that Ms Pelka became the registered proprietor of the home unit on 2 December 1988 (Exhibit R1, p 107) and that an electricity supply account for the home unit was opened in his name on 5 December 1988 (T11, p 29). It was then put to him that he and Ms Pelka moved into the home unit at about the same time in December 1988, and he responded:
“I would say so, yes.” (Transcript, p 88)
He reiterated, however, that Ms Pelka was there before he moved in, and he added:
“But we didn’t actually move in together, like caring for each other together in there. That I remember very well.” (Transcript, p 88)
48. Later in his cross-examination Mr Kuhl gave the following evidence:
“When the house was purchased and settlement had taken place and Ms Pelka was free to move into the house, you both moved into the house and commenced the arrangement of you paying utilities---?---She moved first, I moved later. Because let’s not forget, we knew each other, she moved in, she had to go away for whatever the reason - for how long, whatsoever, I don’t care – and she said to me, ‘Can you look after my place?’ I was living, you know, Peninsula Road, I said yes. When she came back, I was going to leave. So circumstance was there, you know, handing to me. I said, ‘Let’s do something about it’, and we make that arrangement.
Why did you want to stay on? Why did you want to stay on in the premises?---Why not? I think, you know, it’s a good deal.
And you stayed on there for 16 years with her?---No, not with her.
Well, from 1988 through to 2004?---That’s right, but not with her. Not with her.
It’s her premises--?---She’s – her place.
She was living in the premises as well, wasn’t she?---That’s right, she is – that’s her place but I’m not living with her. (Transcript, p 94)
49. Mr Kuhl confirmed that he had named Ms Pelka in his will as the beneficiary of his estate and that he had also nominated her as the beneficiary of his superannuation and his life insurance. Asked why he had done that, he responded:
“Because, you know, she’s the only close person that I now have close to me.”
He added:
“Close to me, as a kin, as a friend.” (Transcript, p 95)
50. Mr Kuhl reiterated that he had never had a sexual relationship with Ms Pelka. Asked why he had not, given his earlier evidence that he was attracted to women (see paragraph 46 above), he responded:
“Because she was my godsister, and I respect it.” (Transcript, p 96)
He acknowledged that, when he first met Ms Pelka, he saw her as “an opportunity” for a sexual relationship. His evidence continued:
“So when your parents met her and this godparent, godchild relationship developed, your approach to her changed completely---?---Yes.
---is that what you’re saying?---That’s right. For the respect of my parents first, and her secondly.
Why would you introduce her to your parents if at this early stage she was just an opportunity?---I have no idea.
Was she something a bit different than your normal opportunity? She appealed to you in a different way?---I have no idea.
Don’t remember?---I have no idea. I have no idea how it happened, when it happened, why it happened. It did.” (Transcript, p 97)
51. Mr Kuhl said that his mother and Ms Pelka were “very, very, very close” and that the proposal of a godparents/goddaughter relationship between his parents and Ms Pelka and a godbrother/godsister relationship between him and Ms Pelka was probably suggested to him by his mother. He said that he did not think that Ms Pelka suggested it to his parents because they would not have understood owing to the “language barrier”. He said that his parents were not proficient in English and communicated with Ms Pelka in “feelings” rather than in words. Later in his evidence, however, he confirmed that Ms Pelka used to speak to his parents by telephone every 2 months.
52. Mr Kuhl said that he did not have any expectations of his godbrother/godsister relationship with Ms Pelka, and that he regarded it as “exactly the same” as his relationship with his brothers and sisters, except that he was closer to Ms Pelka than to his brothers and sisters. He said that he has 2 brothers in Australia, and 2 sisters in France.
53. Mr Kuhl was asked whether he would have given protection or financial assistance to Ms Pelka, had she needed it. He said that he, “like a good Samaritan”, would give protection to any person in need of it, and would not give more protection to Ms Pelka than he would give to a stranger in need. Similarly, he said that he would provide financial assistance to any friend, not just Ms Pelka. He said that Ms Pelka never talked to him about her troubles; nor did she ever talk to him about her divorce or her children.
54. As regards their overseas travelling together, Mr Kuhl said that he did not discuss or plan it with Ms Pelka in advance; he would simply tell her that he was going on holidays on certain dates and ask her if she would like to join him. He said that during their overseas visits they would sometimes each go their own way, for example, in sight-seeing or shopping. He added that when they went to Singapore Ms Pelka would spend most of the time with her family. Asked whether he had ever met Ms Pelka’s family, he said that he had not because her family was not his concern. He also said that he never attended the Chinese Club in Perth with Ms Pelka, nor did he ever meet any of her Chinese friends.
55. Mr Kuhl said that, for the duration of the time he shared accommodation in the home unit with Ms Pelka, he had no intention of leaving that arrangement.
56. In re-examination Mr Kuhl said that, in 2000, he and Ms Pelka would have been in the home unit at the same time once or twice per week, and that he “hardly” saw her. He said that they never discussed their private lives with each other.
Additional Material
57. Ms Pelka tendered in evidence a statement of Mr Whittaker dated 23 November 2004, the contents of which are as follows:
“1. I reside at … Warwick and I am in (sic) widower.
2. I am the recipient of a blind pension.
3. From about mid year in 2000 Ms Marilyn Pelka accepted an offer by me to act as a carer for me.
4. During the period from mid 2000 my carer has been with me up to 24 hours a day.
5.I was aware Ms Pelka had a gentleman living in her premises in Maylands. I knew of no specific details.
6.I have never met this person I have never spoken to him on the phone or in person.
7.On occasions I have been away with my carer (she driving my car) for varying periods of times.
8.During those periods of times I have not been aware of any phone calls received by or made by Ms Pelka to any persons.
9.During the time my carer has been with me likewise I am not aware of any phone calls made by Ms Pelka or received by her from any source.
10.I have sometimes had the need to ring Ms Pelka at unusual hours because I needed her. She has always been available to come to service my needs no matter what the time or day.
11.My carer has been required to work unusual hours and she has never complained she had to be anywhere or do anything of a social nature during those unusual hours.
12.My carer has never told me of any social outings she has had during the period from mid 2000.
13.When I’ve had occasions to ring Ms Pelka at her Maylands premises she has always answered the phone herself.
14.When Ms Pelka has been at my premises I have never heard her take or make any phone calls. All phone calls to my premises are for me.
15.During the period from mid 2000 I have provided a vehicle for my carer. She has possession of that car 24 hours a day.
16.I am aware Ms Pelka had a vehicle of her own and she parked that vehicle at … Warwick permanently until a few months ago. At that time she told me she was going to sell the car.
17.In the time the car was parked in Warwick it was there continually except on occasions Ms Pelka took the car out to keep the battery charged up and to check the tyre pressure.
18.I was never aware that the seat position on the passenger side of my vehicle had been changed. Because of my affliction I would have been very aware of any change as only a blind person would.
19.I have been overseas on occasions since mid 2000 and Ms Pelka has been with me. I am not aware Ms Pelka has had any contact with any person or persons in Australia. On those occasions my carer has been with me 24 hours a day.
20.On those overseas visits I have booked twin share accommodation for my carer and myself. On each of those occasions I have paid all expenses for myself and my carer. Any monies other than food, travelling and accommodation needed by my carer have been provided by Ms Pelka from her own resources.
21.During the period from mid 2000 until 20.09.04 Ms Pelka has on occasions stayed at … Warwick so my needs could be met.
22.During those occasions I gave my carer very little and on some occasions no notice of my need for her to stay overnight.
23.My Warwick … premises have 4 bedrooms and one of those bedrooms is allocated for my carer’s use when she was required to stay.
24.Since 20.09.04 my carer has resided at … Warwick.
25.I should say I am very happy and very comfortable with the way Ms Pelka carries out the duties I require of her.” (Exhibit A6)
[The Tribunal notes that the respondent did not seek to cross-examine Mr Whittaker, and did not object to the tendering of his statement by Ms Pelka.]
58. Ms Pelka also tendered in evidence a bundle of documents provided by Home Building Society relating to transactions by Mr Kuhl on the abovementioned account (formerly held jointly with Ms Pelka) in the period from September 2004 to January 2007. It is unnecessary for the Tribunal to refer to any of those documents in detail in these reasons.
The Relevant Legislation
59. 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
(b) all of the following conditions are met:
(i) the person has a relationship with a person of the opposite sex (in this paragraph called the ‘partner’);
(ii) the person is not legally married to the partner;
(iii)the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
…
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) or subparagraph (2)(b)(iii), 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.”
Analysis and Findings
60. In Pelka v Secretary, Department of Family and Community Services (above) French J, after considering various authorities relating to former statutory provisions corresponding to s 4(2) and s 4(3) of the Act, said (at 555-556):
“Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
(1) Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
(2) Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people; and
(e) the nature of the people’s commitment to each other.
(3) In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
(4) Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
(5) Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
Sexual relationship
85. If it be the fact that there has never been a sexual relationship between Ms Pelka and Mr Kuhl – and there is no evidence before the Tribunal which disproves that fact – that would clearly militate against the existence of a marriage-like relationship between them. Having regard to the considerations referred to in paragraphs 74-77 above, however, the Tribunal is not prepared unreservedly to accept the evidence of Ms Pelka and of Mr Kuhl that they have never had a sexual relationship. The Tribunal prefers not to make a finding in relation to that matter and to treat that matter as neutral for the purpose of determining whether or not a marriage-like relationship between Ms Pelka and Mr Kuhl existed in the relevant period.
Nature of their commitment to each other
86. Relevant objective evidence of a mutual commitment between Ms Pelka and Mr Kuhl of a nature indicative of the existence of a marriage-like relationship between them in the relevant period includes the following:
· their residing together in the home unit for approximately 16 years from 1988 to 2004;
· their travelling overseas together on 13 occasions between 1988 and 2001;
· Mr Kuhl’s nominating Ms Pelka in his will as the beneficiary of his estate, and nominating her as the beneficiary for the purposes of his superannuation and life insurance;
· Mr Kuhl’s describing Ms Pelka as his “de facto” or “partner” in certain documents completed by him in the relevant period for employment and superannuation purposes (see paragraph 69 above).
87. As stated earlier (see paragraph 77 above), it seems to the Tribunal that Ms Pelka and Mr Kuhl, in giving their evidence, were at pains to minimise their relationship generally, including the nature and degree of their commitment to each other. The Tribunal finds it very difficult to accept Ms Pelka’s and Mr Kuhl’s evidence that they never discussed with each other their personal lives or other personal matters, such as their employment – that is, in effect, that they never confided in each other. That, in the Tribunal’s opinion, is inconsistent with the longstanding relationship which has existed between them, involving cohabitation in a 2-bedroom home unit for approximately 16 years, which, the Tribunal is satisfied on the basis of the evidence before it, was characterised by mutual affection, trust and respect. Likewise, the Tribunal finds it very difficult to accept their evidence to the effect that they would not provide help and support to each other in time of need to any greater extent than they would to any other person in similar circumstances. The Tribunal is satisfied that Ms Pelka and Mr Kuhl, consistently with the close and special bond which has, according to their own evidence, existed between them since at least 1988, would have provided to each other physical and emotional support commensurate with their close and special bond, had the need arisen to do so at any time (including the relevant period).
88. Having regard to the whole of the evidence before it, the Tribunal is satisfied that, prior to, and for the duration of, the relevant period, Ms Pelka and Mr Kuhl displayed a special commitment to each other, both physically and emotionally, which was qualitatively different from the commitment which either of them had to any other person. The Tribunal is also satisfied that, for the duration of the relevant period, Ms Pelka and Mr Kuhl had no desire to change their existing living arrangements. In the Tribunal’s opinion, the nature of Ms Pelka’s, and Mr Kuhl’s, commitment to each other militates strongly in favour of the existence of a marriage-like relationship between them for the duration of the relevant period.
Finding
89. Having considered the whole of the evidence in this matter, it seems to the Tribunal that the cohabitation arrangement entered into by Ms Pelka and Mr Kuhl in or about 1988, and maintained thereafter by them until September 2004, was based on several factors. It was no doubt partly based on financial and practical considerations but, in the Tribunal’s opinion, it was also based very substantially, if not predominantly, on the special bond which existed between them, which involved mutual affection, trust and respect, and their desire for companionship, mutual support, security and stability.
90. Having had regard to the interpersonal relationship of Ms Pelka and Mr Kuhl as a whole, including the matters and factors specified in s 4(3) of the Act, the Tribunal is satisfied, on the basis of the whole of the evidence before it, that the true nature and character of their interpersonal relationship for the whole of the relevant period was that of a marriage-like relationship. Although, as previously discussed, some relevant factors pointed against a marriage-like relationship, while others pointed towards a marriage-like relationship, in the Tribunal’s assessment the nature and degree of the commitment of Ms Pelka and Mr Kuhl to each other prior to, and for the duration of, the relevant period, as demonstrated primarily by the relevant objective evidence, tipped the balance in favour of the existence of a marriage-like relationship between them for the whole of the relevant period.
Conclusion
91. It is common ground that the conditions specified in subparas (i), (ii), (iv) and (v) of s 4(2) of the Act are met in Ms Pelka’s case. By reason of its abovementioned finding that a marriage-like relationship between Ms Pelka and Mr Kuhl existed for the whole of the relevant period, the Tribunal has found that the condition specified in subpara (iii) of s 4(2)(b) is also met in Ms Pelka’s case. It follows, in accordance with s 4(2) of the Act, that Ms Pelka was a “member of a couple”, for the purposes of the Act, for the whole of the relevant period, and the Tribunal so finds.
Decision
92. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Ms L Tovey, Member
Signed: ......................[Sgd C Skinner]..............................
AssociateDates of Hearing 26, 27 July 2007
Date of Decision 16 October 2007
Advocate for the Applicant Mr R O'Toole
Counsel for the Respondent Ms L Price
Solicitor for the Respondent Australian Government Solicitor
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