Pelka and Secretary, Department of Family and Community Services
[2005] AATA 120
•8 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 120
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/432
GENERAL ADMINISTRATIVE DIVISION ) Re MARILYN PELKA Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms L Savage Davis, Member Date8 February 2005
PlacePerth
Decision The decisions under review are affirmed. ..........(sgd L Savage Davis)..........
Member
CATCHWORDS
SOCIAL SECURITY – whether applicant in a marriage-like relationship – criteria for forming opinion about relationship – financial aspects – nature of household – social aspects – sexual relationship – nature of commitment – overpayment of carer payment
Social Security Act 1991 (Cth) ss 4(2) (3), 210, 1064
Van Es and Secretary Department of Family & Community Services [2003] AATA 329
Ford and Secretary, Department of Family & Community Services (2003) AATA 7
Spencer and Secretary Department of Family & Community Services (1987) 13 ALD 497
Sekhon v Secretary Department of Family & Community Services [2003] FCAFC 190
Re: secretary, Department of Family and Community Services and WAP [2000] AATA 7
REASONS FOR DECISION
8 February 2005 Ms L Savage Davis, Member 1. This is an application by Ms Marilyn Pelka (“the applicant”) for a review of decisions made by the Social Security Appeals Tribunal (“SSAT”) on 10 October 2003 which varied the decision made by Centrelink on 24 March 2003 to regard the applicant as a member of a couple for the period 11 July 2000 to 23 March 2003 and to raise an overpayment of carer payment paid to the applicant of $29,411.14 for the period 11 July 2000 to 23 March 2003, to the extent that the debt be recalculated in accordance with Mr Kuhl’s earnings as stated under the findings of fact in the SSAT decision of 8 October 2004.
2. The applicant was represented by Mr Ralph O’Toole, Compensation Advocate, Mr Chris Ward represented the Secretary, Department of Family and Community Services (“the respondent”). The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) (T1-T84, pp1-257), a Statement of Facts and Contentions filed on behalf of the applicant on 28 October 2004, a Statement of Facts and Contentions with attachments filed by the respondent on 10 September 2004 and Exhibit A1. The Tribunal was assisted by Mr Kenneth Mac, an interpreter in the Cantonese language.
Issues and Legislation
3. The first issue that arises in this application is whether the applicant was living in a marriage-like relationship during the period 11 July 2000 to 23 March 2003 and therefore should be treated as a member of a couple for the purpose of calculating her rate of entitlement under the social security law for that period. The relevant legislation is the Social Security Act 1991 (“the Act”). Section 4(2) provides:
“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 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 .
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 relationship.
4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”
4. In reaching a decision the Tribunal has been mindful of the criteria in s 4(3) of the Act which has to be taken into account, though not exclusively, in forming the opinion of whether someone is in a marriage-like relationship.
Preliminary Issue
5. The Tribunal had been advised by Mr Ward that it was likely this matter would be referred to the Commonwealth Department of Public Prosecutions. The applicant and her advocate Mr O’Toole had declined to defer the review by the Tribunal until the question of whether a prosecution would be initiated was resolved. This issue was raised again at the beginning of the hearing. Mr Ward stated that the respondent would favour deferring the Tribunal hearing until the issue in regard to a potential criminal proceeding was resolved. After considerable discussion Mr O’Toole on behalf of the applicant insisted that they wished to proceed with the hearing.
Ms Pelka’s Evidence
6. Ms Pelka told the Tribunal that between 1988 and September 2004 she resided in the unit that she owned at 4/7 Riverslea Avenue, Maylands (“the unit”). In September 2004 she moved to Warwick to the home of Mr Collin Whittaker. Ms Pelka has been Mr Whittaker’s carer since 2000. Ms Pelka said in 1986 she had separated from her husband and was divorced from him in November 2003. She met Mr Michael Kuhl at a party in 1985. Subsequently she met his parents, became close to them, and as was not uncommon in her culture, asked them to be her godparents. As a result Mr Kuhl became her god brother. At the time she bought the unit she was intending to take an extended holiday overseas. Before leaving she asked Mr Kuhl to house sit the unit. In exchange for living rent free he was to pay all bills. He moved into the unit some months after she had. Prior to her leaving to go overseas the phone, electricity and gas accounts were transferred into his name. She returned from overseas sooner than expected. Mr Kuhl had nowhere to go so she said he could stay in the spare room. The arrangement was that he would still pay no rent but in exchange would pay for her to have overseas holidays, that is, the airfares and accommodation.
7. The applicant said she worked at the Kimberley Nursing Home as an aid from 1988 for about 12 to 14 years. Throughout this time she paid the mortgage on the unit and subsequently paid it off entirely with the settlement from her marriage. She has always paid the rates and water and Mr Kuhl has always paid the phone, electricity and gas bills although she pays for her overseas calls to her mother.
8. Ms Pelka told the Tribunal it was a 2-bedroom unit with a kitchen and lounge which they had both provided furniture for. The furniture in each bedroom was supplied by them individually. They had never had a sexual relationship or slept together. They did their own washing and on occasions Ms Pelka provided food for Mr Kuhl, generally when she had cooked extra.
9. When they travelled overseas, which has been approximately once a year over a 12 year period, they shared a twin share bedroom to save money. When in Singapore, she would stay with her mother. She paid for her own shopping trips. She said on occasions they ate together and took it in turns paying for meals when travelling.
10. Ms Pelka said that they had never had a joint bank account. Perhaps every 6 months they would go to a movie together. She had never told anyone that she was in a relationship with Mr Kuhl and was unaware that he had completed a document describing her as his partner or de-facto. Ms Pelka said she had not had a sexual relationship with anyone since the breakdown of her marriage.
11. Ms Pelka said she and Mr Kuhl led very separate life’s over the 16 years or so they had shared her unit. She said days could go by without them seeing each other and she paid no attention to his private live. Sometimes he did not come home for days at a time. She said she had no right to know where he was, it was none of her business. She said it was just a convenience that he was there. Ms Pelka said they are not responsible to each other, she doesn’t tell him if she will or will not be home. Mr Kuhl has never given her any money, and she didn’t know what his wages were and had had to ask for that information since this matter arose. Since she moved out in September 2004 to live with Mr Whittaker and care for him, Mr Kuhl pays her $55 a week rent as they are no longer going on overseas holidays.
12. Mr Kuhl lost his license sometime ago on a drink driving charge. As a result he sold his car. Ms Pelka no longer has the car because she uses a car provided by Mr Whittaker and so Mr Kuhl is now buying her car from her. He currently pays for the insurance and registration and the car will be transferred into his name, she said, when he has completed paying for it.
13. Ms Pelka said she has never considered herself to be in a marriage-like relationship and if she had known that Mr Kuhl had referred to her as his de-facto she would have stopped it. In regard to a Commonwealth Bank account that she opened in 1998 where she stated she was married this was the truth as she was not divorced from her husband at that time. She said she and Mr Kuhl do not pool resources except in terms of the holiday. She did not know that she was the beneficiary of Mr Kuhl’s will, superannuation or life insurance until this matter arose. She said that although they have had 12 trips together, she had at times travelled overseas alone. She has travelled regularly since 1991. Apart from films, they did not go to any parties together during the period in question. Ms Pelka said she did not always understand the documents that she was asked to fill in.
14. In cross-examination Ms Pelka said she was known as either Marilyn Pelka or Mee Ching Pelka. When she was referred to T32/69 which lists the names Mee Ching Chu, Mo Chin, Mo Chin Pelka, Mo Chin Pelka Chu and Mo Chin Chu she said that this was a mistake on the part of officials.
15. Ms Pelka said she could not remember the party she was at when she met Mr Kuhl. After that she said they saw each other about once a fortnight although she couldn’t remember exactly. She said they would meet for coffee. Ms Pelka agreed they became spiritually close after she met his parents, who came to Perth in 1995 and stayed with her for 4 weeks. Mr Kuhl did not stay with them but they all went out together and a bond developed. The decision to buy the unit in 1988 was hers alone, Mr Kuhl did not move in until she was leaving for her trip. Ms Pelka said they each did their own shopping and cooking. She couldn’t recall whether it was once a week, once a fortnight or once a month that they ate together. She said that the furniture in the living room, that is the lounge, dining suit, television and video recorder all belongs to Mr Kuhl. The bookcase was hers. When referred to T2/5 at paragraph 9 of the SSAT decision she said that nothing much had needed repairs so her reference to Mr Kuhl paying or replacing larger expensive items had not occurred. She said they had no joint bank accounts. The reference to the collection box was a box where she and Mr Kuhl deposited change. The small amount that they collected was taken and used by them overseas to pay for meals.
16. Ms Pelka could not remember when she and Mr Kuhl first travelled overseas together or where they went. When questioned she recalled that they had been to Singapore and Malaysia and when prompted that they had been to France and European countries. On prompting she also remembered that they had been to the US. When travelling she confirmed that she paid for her shopping and Mr Kuhl paid for airfares and hotels. She said they ate together for most meals and went on tours together, although sometimes they did different activities in the day. Ms Pelka could also not remember when they had last gone on a trip. She thought that perhaps it was 3 to 4 years ago.
17. Ms Pelka said she met Mr Whittaker a few years ago at his dance studio in Malaga. She was referred to her claim for carer’s payment which, at question 43, she had marked “no” to the question “do you (and your partner) share with anyone else”. She said she put down “no” because she had rung Centrelink and they had told her that you did not need to put down someone if they were a god brother or a brother. She said she recalled this clearly. Ms Pelka was referred to T22/43 where Mr Kuhl refers to her as his de facto. She said that he would have done this because it would help him with employment to be in a relationship. She was also referred to T23/46 which recorded answers to questions involving Mr Kuhl’s superannuation that recorded Ms Pelka as his de-facto. Ms Pelka said she believed he would do this to protect her so she would get the money without complication. He had no one else to leave it to as his parents had died a few years ago.Ms Pelka said that she rarely went to parties; she had lost interest in parties and going out. She could not recall how often she went out.
18. Ms Pelka was asked what it meant to be someone’s god sister. She said in Chinese traditional culture, especially involving elderly people, it was not uncommon to take a person as a god son or god daughter so she became god sister to Mr Kuhl. Ms Pelka attempted to explain what the relationship meant, indicating it was somewhat like sister and brother, and that she would care for him although she would care for anyone in need. The bond between her and Mr Kuhl was close bond in the spiritual way. Ms Pelka said she would let him live in the property rent-free, for example, if he was unemployed, due to the brother-sister bond. They bought small gifts for each other for Christmas and birthdays. Ms Pelka agreed a god brother was a special friend. Ms Pelka said she doesn’t have much time to be involved in the Chinese culture and doesn’t see many Chinese people. She said she had been close to Mr Kuhl’s parents and had spoken to them every couple of months. She said Mr Kuhl is paying her $7,500 for her car and $55 per week in rent plus he still pay gas, electricity and telephone bills.
19. In re-examination Ms Pelka said that she was still with her husband when she met Mr Kuhl in 1985. Mr Kuhl’s parents stayed with her and her then husband. She said she has no will. She met Mr Whittaker at the ballroom 9 years ago. Ms Pelka agreed that Mr Kuhl provided holidays in exchange for rent-free accommodation. She agreed that in effect she was forced to spend time with him on overseas holidays.
20. Ms Pelka said that apart from the unit there is a block of land in Mandurah in her own name. Although it is in her name it was bought with money her aunty won at the casino and she considers that it belongs to her aunty who sends her money to pay rates etc. Currently she receives the rent of $55 per week, carer’s payment and the money that Mr Kuhl is paying for her car. She had unlimited use of Mr Whittaker’s car. Mr Whittaker also gave her money to shop on his behalf and on behalf of the ballroom. Ms Pelka said she had 2 or 3 bank accounts but has no idea of how much money there was in any of them. She also receives some small amounts of money from her mother.
Mr Kuhl’s Evidence
21. Mr Kuhl said he had lived at the unit since 1988. He met the applicant at a party in 1985 and his parents stayed with Ms Pelka on a visit sometime after that. He moved in to the unit because Ms Pelka was going overseas. It was agreed that he would not pay rent, but pay the phone, electricity and gas bills and those accounts were put into his name. He assumed she would be away for a long time although he didn’t know how long that would be. As it happened she returned somewhat sooner than expected although he couldn’t recall how long she had been away. He had nowhere to go so they came to the arrangement that he could stay and rather than pay rent he would provide annual holidays. He said since meeting he would describe them as god sister and god brother. He said he was not sure how it came about that his parents adopted her. When he moved in he bought his own bedroom furniture and lounge room furniture.
22. He described their relationship as being separate and apart, he didn’t tell her what he was doing and he would often stay away with lady friends. He said they did find a way to talk to arrange holidays which took place around the same time each year. He does his own cleaning, he has never had sex with Ms Pelka nor have they even been in each other’s bedroom. He said that they both used the kitchen and lounge room and the bedrooms are exclusively their own. Mr Kuhl confirmed that apart from Singapore where Ms Pelka stayed with her family they had always stayed in a twin share room to save money. On holidays he provides no spending money for the applicant. He said that she didn’t know that he had put her down as a de-facto, he did this because it looked better for prospective employer if he was in a stable relationship. He has named her as the beneficiary of his superannuation as he had no one else to leave his superannuation to and believed she would be able to access the money more easily if described as his de-facto.
23. Mr Kuhl said he was currently buying Ms Pelka’s car from her. He pays rent now because they no longer holiday together. Mr Kuhl was referred to Exhibit A1. For all returns where the question is “full name for your spouse or de facto spouse” it has been left blank.
24. In cross-examination Mr Kuhl said he could not remember at whose party he met Ms Pelka. He said they did not meet on a regular basis, just for coffee. He couldn’t recall when he moved into her unit because it was such a long time ago. The understanding between them was that for rent-free accommodation he would provide holidays. He could not remember when they first travelled overseas, perhaps it was 1991. The cost of their trips varied from $1,000 to $5,000 for the European trip. The collection box was only used for loose change and he was responsible for it. It might pay for one meal when they went away.
25. Mr Kuhl was referred to T48/179, an application for membership of Rest Super. He agreed it was his handwriting and that he had referred to Marilyn Pelka as his partner. He said he had no idea why he put ‘partner’ instead of friend. Mr Kuhl was referred to T41/164 which is headed “New employee details form”. On that form he had listed under ‘Emergency contact’ Marilyn Pelka and described the relationship she had to him as ‘partner’. At the top of the form he described his marital status as single. Mr Kuhl initially indicated that it was a job application form and so it was important to indicate he had a partner. This was not withstanding that he had actually described his marital status as single. Whilst Mr Kuhl accepted on further questioning that it was not a job application form, he said the inconsistency was perhaps a mistake but also contended that someone can be single, but also have a partner.
26. Mr Kuhl was referred to T33/99. He clearly recalled that he was under the influence of alcohol at that time and that would have been why he had put down Marilyn Pelka as his spouse to Alinta Gas.
27. Mr Kuhl said they had been on about a total of 12 trips costing about $20,000. He said Ms Pelka had never indicated she did not want to go on holidays. When questioned about the significance of the god sister/god brother relationship he said it was not the same as a brother and sister. He said there was no emotion involved at all. His parents consider Ms Pelka a god daughter but he was not sure that he would care for Ms Pelka more than any other individual. He said the god sister/god brother was just a title. He said he didn’t know if Ms Pelka would have thrown him out of the unit if he couldn’t provide overseas holidays.
Mr Colin Whittaker’s Evidence
28. Mr Whittaker said he had known Ms Pelka for 8-9 years, and had met her at the ‘Talk of the Town’ ballroom in Malaga. Both he and Mr O’Toole, Ms Pelka’s advocate, had been managing directors at some time. He said Ms Pelka has been his carer since 2000. She had been away with him on a number of business trips for up to 10 – 14 days, including a 3 month period while they were travelling around Australia. He had never been aware of any boyfriend. Mr Whittaker said Ms Pelka had always come alone to the ballroom and he said he saw her often because she came up to 4 times a week. He had never been aware of any boyfriend during that time.
29. When they travelled interstate or overseas, which they had done on at least 8 times in the last 3 or 4 years, they stayed in twin share accommodation. He said he needed 24 hour care from Ms Pelka particularly when he was in a foreign environment. He said that he paid for everything when they travelled. He was not aware of her having any contact by phone with males during that time. He said that she had been his carer since 2000 and prior to her moving into his Warwick home, he had been able to ring her at odd times and she was always able to come over even at short notice. Since mid 2000 he has provided her with a car which he owns, maintains and provides petrol for. The insurance is in the applicant’s name because she has a no claim bonus.
30. Mr Whittaker told the Tribunal he was sure that the front passenger seat position has never been changed, the significance of which Mr O’Toole said would be explained later. Mr Whittaker also said he had never smelt any perfume or aftershave in the car. Mr Whittaker said he gives Ms Pelka money for food, clothes and petrol and she shops at FAL both for him and the ballroom. She gives him back any money that she doesn’t need. She is not paid anything extra to shop for the ballroom. He said often in the past she had had to stay overnight at short notice she did not get paid extra for this. Mr Whittaker said he knew her quite well before. She became his carer. She was secretive in that she never discussed her private life with him. He did not know who her friends were or anything about her private life. Mr Whittaker said she likes to keep herself to herself and for example, he only heard about this matter with Centrelink several months after it had occurred.
Final submissions on behalf of the applicant
31. On behalf of the applicant it was submitted that there was no evidence to support the conclusion that the applicant was a member of a couple. In particular it was submitted:
· There were no jointly owned major assets or liabilities, no significant pooling of resources, no legal obligations owed by either Mr Kuhl to the applicant or vice versa and no sharing of day-to-day household expenses. It was submitted that there was in effect a barter arrangement were Mr Kuhl in exchange for rent paid for an overseas holiday per year and apart from that each provided for themselves. Mr Khul also paid for telephone, gas and electricity.
· Each had their own bedroom and was responsible for their own shopping and washing although Ms Pelka did most of the cleaning because she was at home more.
·At no time did the applicant and Mr Khul hold themselves out to be a married couple and at those times when Mr Khul referred to the applicant as a partner or a de facto, the applicant was unaware of this and this was done for Mr Khul to his own personal advantage in obtaining employment.
·It was submitted that evidence such as Mr Khul's tax returns, where he described himself as single and Ms Pelka's application to join Medicare where she also put herself down as single were evidence that she was not a member of a couple. Her application to the Commonwealth Bank where she stated that she was married was true at that time because she had not at that time divorced her husband.
·It was submitted that the applicant's ability to be available to Mr Whittaker at anytime during the three years in question was also indicative that she was not committed to anyone else. In addition Mr Whittaker, who is severely sight impaired had given evidence that the car seat had never been moved nor had he ever been aware of any perfume or aftershave in the car. This was significant because he was more acutely aware of changes such as this because of his impairment. This supported the contention that no one else had been a passenger in the car.
·Apart from the travelling overseas which was instead of the payment of rent, the applicant did not engage in any joint social activities with Mr Khul.
·It was submitted that there was no sexual relationship between the applicant and Mr Khul or with any other person. Mr Khul's evidence also supported the contention that there was no sexual relationship between them.
·It was submitted that not withstanding the lengthy nature of the relationship, it had started out purely because the applicant required someone to house sit her unit.
·It was submitted that there was no evidence the applicant had provided support to Mr Khul in the past or that she would do any more so than she would to anyone in a household that she shared with who was sick. Each it was submitted came and went as they pleased which was not consistent with a marriage-like relationship.
·It was submitted that the relationship has not continued indefinitely as Ms Pelka had subsequently left the unit to live and care for Mr Whittaker. There was it was submitted no evidence that others saw the relationship as marriage- like. At all times it was submitted they had described themselves as in a god-brother/god-sister relationship.
Final Submissions on behalf of the Respondent
32. On behalf of the respondent it was submitted that the applicant met the criteria in s 4 of the Act and was a member of a couple for the period in question. The submissions can be briefly summarised as follows:
·There is significant pooling of financial resources between the applicant and Mr Kuhl as evidenced by their annual trips overseas on at least 12 occasions since 1992 paid for by Mr Kuhl. This, it was submitted was comparable to a contribution by Mr Kuhl to the mortgage and rates for the unit and was presumably the arrangement reached because it was mutually convenient or beneficial. Both the applicant and Mr Kuhl have given evidence that they contributed to a collection box the funds from which were used by both of them on their overseas trips.
·Mr Kuhl pays gas, electricity and phone and has so since 1988 whilst the applicant has paid the mortgage, an arrangement unchanged until recently. This demonstrated a significant level of financial interdependence.
·The applicant is the sole beneficiary of Mr Kuhl’s will, superannuation and life insurance which reflects a significant financial relationship.
·The applicant and Mr Kuhl have lived in the unit to the exclusion of all others for a period in excess of 15 years.
·The applicant’s own evidence is that she and Mr Kuhl eat together on occasions and do go to a movie together on occasion.
·Mr Kuhl has provided the lounge, TV, VCR and dining suite which it was submitted was a considerable contribution to the household to the benefit of the applicant.
·The applicant and Mr Kuhl have been overseas on 12 occasions since 1992 and on 10 of these occasions have returned to Australia on the same day and flight.
·When claiming carer payment the applicant specifically answered ‘no’ to the question do you (or your partner) share with anyone else?
·It was submitted that only one witness was called in regard other peoples’ assessment of the applicant and Mr Kuhl’s relationship.
·The regularity and frequency of overseas trips, even if organised primarily by Mr Kuhl, were evidence of a high degree of joint planning given that both worked full time. There was very significant interaction whilst overseas including sharing a twin room.
·It was submitted that the absence of a sexual relationship did not necessarily mean a relationship could not be described as marriage-like. It was submitted the applicant and Mr Kuhl has a spiritual bond and that cases such as Spencer v Secretary Department of Family and Community Services 1987 (13 ALD 497) were authority that the absence of a sexual relationship did not prevent a finding that there was a marriage-like relationship.
·The applicant and Mr Kuhl have resided together exclusively since 1988 for in excess of 15 years, becoming close after meeting through Mr Kuhl’s parents in 1985. It was submitted that the applicant has left the unit due to Centrelink’s decision to treat her as member of a couple rather than due to any other independent motive. Mr Kuhl continues to live at the unit paying only $55 rent per week and there is no evidence this arrangement will change.
·The Tribunal was referred to re Spencer and Secretary of Family and community Services (1987) 13 ALD 497 and it was submitted that as god- sister and god brother there was a degree of emotional attachment that was more than mere friendship or even very close friendship. Ms Pelka and Mr Kuhl had both given evidence that they would provide support to each other in ill health or crisis. Whilst both the applicant and Mr Kuhl preferred to have no knowledge, interest and even denied the right to know about each other’s day to day activities in Perth, once a year for up to 4 weeks they shared a common sleeping area, ate and went sightseeing together suggesting a significant level of companionship and interaction. It was submitted this was different to the applicant’s arrangement with Mr Whittaker when they travelled together and by necessity needed to share a room as his carer.
·It was submitted that whilst Mr Kuhl described himself as single for his ATO returns on a number of other documents he described himself as having a partner of de facto.
·It was submitted that there were no grounds to waive the debt and in particular the Tribunal was referred to Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190.
Consideration and Decision
33. In reaching its decision the Tribunal has considered the oral and documented evidence, the cases referred to, other relevant decisions and the relevant provisions of the Social Security Act 1991.
34. In Re: Secretary, Department of Family and Community Services and WAP [2000] AATA 7, the Tribunal said at paragraph 11:
“…… that in deciding whether a person is a ‘member of a couple’ for the purposes of s 4(2) of the Act, an opinion is formed having regard to all circumstances of the relationship including in particular, those matters enunciated in paragraphs 4(3)(a) to (c) exclusively. Those provide objective criteria, which can be determined on the evidence. However, there is no guidance as to how much weight one attributes to each criterion. In the circumstances, it falls to the Tribunal to make a value judgement giving weight to each criterion having regard to all the circumstances of the relationship. The criteria must be considered as a whole in context”.
35. The Tribunal has considered the statutory criteria in s 4(3) of the Act having regard to the evidence before it to establish whether the evidence supports a conclusion that the applicant was in a marriage-like relationship for the period in question.
Financial aspects of the relationship
36. The applicant and Mr Kuhl do not jointly own any real estate, bank accounts or have any joint liabilities. There was no evidence that the applicant had assets other than the unit, land in Mandurah, bank accounts and a car that she is currently selling to Mr Kuhl. The applicant maintained that although the land in Mandurah was in her name she considered it the property of her aunt. Since the purchase of the unit the applicant’s income and property settlement has serviced and paid off the mortgage of the unit. Since some months after the unit was purchased by the applicant some 16 years ago, Mr Kuhl has paid the gas, electricity and the telephone account. The applicant pays the rates. Mr Kuhl has only recently begun to pay the modest rent of $55 per week. Throughout the entire 16 years they cohabited the applicant and Mr Kuhl have apparently without any difficulty maintained what has been described as a barter system where rent has been forgone by the applicant for an annual overseas holiday. This reflects a significant level of trust and financial co-operation on both sides.
37. The Tribunal accepts that they provide for themselves in all day to day requirements but concluded that their financial relationship involved significant co-operation, pooling of resources and mutual benefit.
Nature of the Household
38. The applicant and Mr Kuhl each have a bedroom but share a common kitchen, lounge room and bathroom. The bedroom furniture is their own and Mr Kuhl has supplied most of the lounge room furniture. The applicant does more housework and she could not recall if they ate together once a week, a fortnight or a month but they did eat together at times when she cooked extra.
Social aspects of the relationship
39. Whilst the applicant, on the documented evidence before the Tribunal, has not held herself out as in a relationship with Mr Kuhl, Mr Kuhl has variously described her as his partner or de-facto and named her as the beneficiary of his superannuation. The applicant has said she was unaware of this.
40. Only one witness was called who gave evidence relevant to s 4(3)(c)(ii) of the Act. The Tribunal gives little weight to his evidence that in the 8 – 9 years he had known her he had never been aware of any boyfriend. This and the fact that she was available to come to his assistance at short notice and at odd times is largely negated by his evidence that “she was secretive in that she never discussed her private life with him’ and that he did not know who her friends were.
41. The applicant’s description of her relationship with Mr Kuhl was at times contradictory. Her evidence to the SSAT was that she and Mr Kuhl had a very close spiritual bond (T2/4 para 6). At the Tribunal hearing she agreed in cross-examination that she and Mr Kuhl became spiritually close after she met his parents. She also described it as somewhat like a sister and brother and as a close bond in a spiritual way. However, at other times she said it was just a convenience that he lived in the unit. She said she had no right to know where he was. Mr Kuhl had a different perception of the god-sister, god-brother relationship saying it was not like a brother and sister, there was no emotion involved and was just a title.
42. The difficulty the Tribunal had in gaining a clear understanding of the god-brother/god-sister relationship was exacerbated by the evidence highlighting the marked contrast in the relationship between the applicant and Mr Kuhl at home and overseas. At home their evidence painted a picture of separate lives, bordering on complete disregard for the whereabouts or activities of the other apart from the occasional movie, meal or plans for the next overseas trip. Then for up to 4 weeks a year for at least 12 years they travelled overseas together, ate together regularly and slept in the same room. In addition, the applicant said she would allow Mr Kuhl to live cost free, for example, if unemployed. The Tribunal concluded that this was the most significant relationship the applicant appeared to have in her life involving a close bond, trust and very considerable emotional significance.
Sexual relationship
43. The applicant and Mr Kuhl both gave evidence they had no sexual relationship although they shared a twin bedroom on holidays annually until recently. Mr Kuhl told the Tribunal he has relationships with other women. The applicant said she has not had a sexual relationship with anyone since her marriage ended.
The nature of their commitment to each other
44. The applicant, who describes her relationship as a close spiritual bond has allowed Mr Kuhl to live in her unit for some 16 years. Even since she recently left the unit she has allowed him to continue to reside there. Mr Kuhl whilst on the one hand giving evidence that there was no emotion involved in their relationship had made her a beneficiary of his superannuation and will. The Tribunal concludes that their commitment to each other has been long standing and close and there is no evidence of any other significant relationships during the period in question.
45. In the opinion of the Tribunal, the weight of evidence supports the finding that at the relevant time Ms Pelka was in a marriage-like relationship and was a member of a couple for the purposes of s 4(2) of the Act, satisfying s 4(2)(b) of the Act.
46. The Act provides that in calculating the rate of carer’s payment payable the partner’s income must be taken into account (see ss 210 and 1064 of the Act). The failure to do so has resulted in an overpayment and in accordance with s 1223(1) of the Act and is a debt to the Commonwealth.
47. There are a number of provisions under the Act that allow for the waiving of a debt. Section 1237A(1) provides:
“Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
48. This debt has not arisen solely due to administrative error on the part of the Commonwealth. In particular Ms Pelka answered no to the question “Do you (a d your partner) share with anyone else” (Question 43, Claim for Carer Payment and/or Carer Allowance – Secretary’s Statement of Facts and Contentions and Attachments; Attachment I). In the context of her poor recall when asked for example, where she met Mr Kuhl, how often and to which countries she travelled overseas with him, the Tribunal is not convinced of the accuracy of her recollection that she rang Centrelink and was told that if someone was a brother or god-brother they did not have to be listed as sharing accommodation with you. Therefore section 1237A(1) of the Act cannot apply.
49. Section 1237 AAD of the Act provides:
“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or false representation; or
(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
Note: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
50. There are a number of criteria that must be satisfied for this section to apply. There is no evidence before the Tribunal that there are special circumstances in this case so it is not necessary to consider this provision further.
51. Therefore, for the above reasons and pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the decisions under review, that being the decisions of the SSAT made on 10 October 2003, are affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms L Savage Davis, Member
Signed: ......................(sgd N Wee)..............................
AssociateDate/s of Hearing 23 November 2004 and 22 December 2004
Date of Decision 8 February 2005
Counsel for the Applicant Mr Ralph O’Toole
Solicitor for the Applicant Ralph O’Toole
Counsel for the Respondent Mr Chris Ward
Solicitor for the Respondent The Service Recovery Team Centrelink
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