Philip and Secretary, Department of Social Services (Social services second review)
[2021] AATA 4803
•23 December 2021
Philip and Secretary, Department of Social Services (Social services second review) [2021] AATA 4803 (23 December 2021)
Division:GENERAL DIVISION
File Number(s):2021/0827
Re:Antony Philip
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:23 December 2021
Place:Brisbane
The Tribunal affirms the decisions under review.
..............[SGD]....................
Member D Mitchell
Catchwords
SOCIAL SECURITY – Age Pension – rate of pension – whether Applicant was a member of a couple – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415
In Marriage of Todd (No. 2) (1976) 9 ALR 401
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35
Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050
Zablotsky and Secretary, Department of Social Services [2020] AATA 374
REASONS FOR DECISION
Member D Mitchell
23 December 2021
INTRODUCTION
Mr Antony Philip (the Applicant) is seeking review of a decision of the Social Services and Child Support Division (SSCSD) of the Tribunal made on 29 January 2021[1] to affirm the decision of the Respondent that he was a member of a couple with Mrs Georgina Philip (Mrs Philip) from 10 July 2020.
[1] Exhibit 1, T Documents, T2, pages 3-15, Decision of the SSCSD.
BACKGROUND
The Applicant and Mrs Philip have been married since January 1997 and at the date of the Hearing continue to be legally married[2] and reside together under the one roof at their jointly owned property at Toogoom (the Toogoom Property).[3]
[2] Exhibit 1, T Documents, T18, pages 158-159, Centrelink Marital Status Records.
[3] Exhibit 1, T Documents, T18, pages 156 and 160, Centrelink Address History Records.
This matter relates to a decision made by the Respondent on 14 October 2020, affirming the decision of 10 July 2020, that assessed the Applicant and Mrs Philip as members of a couple and adjusted the Applicant’s rate of age pension accordingly.[4]
[4] Exhibit 1, T Documents, T9, pages 115-116, Decision letter and T16, pages 125-131, Decision and Notes of the Authorised Review Officer.
That decision effectively reversed the Respondent’s assessment made on
10 June 2016, that the Applicant and Mrs Philip were living separately under one roof from 29 March 2016, now finding that from 10 July 2020 they were members of a couple.[5]
[5] Exhibit 1, T Documents, T16, pages 125-128, Decision and Notes of the Authorised Review Officer and T18, pages 158-159, Centrelink Marital Status Records.
The Applicant sought a first-tier review of the Respondent’s decision by the SSCSD. The SSCSD affirmed the decision under review on 29 January 2021.[6]
[6] Exhibit 1, T Documents, T2, pages 2-15, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of the Tribunal by way of an application received on 5 February 2021.[7]
[7] Exhibit 1, T1, pages 1-2, Application for Review of Decision.
A Hearing was held by this Tribunal on 9 September 2021. At the Hearing, the Applicant was self-represented, appeared by telephone and gave evidence under affirmation.
The Respondent, in its Statement of Facts, Issues and Contentions provided a comprehensive outline of the background facts to this matter. That background outlines the Applicant’s personal circumstances, based on the evidence before the Tribunal having been submitted or provided by or on behalf of the Applicant and Mrs Philip or the Respondent between 29 March 2016 and 16 August 2021.[8] This background was not materially challenged by the Applicant. The Tribunal, in having reviewed all of the documentary evidence before it and the evidence provided at Hearing by the Applicant, considers that outline to be a fair and accurate reflection.[9]
[8] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, pages 1-12.
[9] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, pages 1-4, paragraphs 4-39.
Rather than repeat that outline or reproduce it here, for readability and to ensure the context of the following decision is clear, that outline is found at Annexure A to this decision.
ISSUES
The issue before the Tribunal is whether the Applicant has been paid the correct rate of the age pension from 10 July 2020. To determine that issue, the Tribunal must determine whether the Applicant and Mrs Philip were members of a couple within the meaning of section 4(2)(a) of the Social Security Act 1991 (Cth) from 10 July 2020. If the Tribunal finds that the Applicant was not a member of a couple, then it follows that he should be paid the age pension at the single rate.
LAW
The relevant law in relation to these matters is found in the
Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act1999 (Cth) (the Administration Act).Sections 4(2) and 4(3) of the Act set out the member of a couple test. These subsections relevantly provide as follows:
(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; ….
Member of a couple – criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), …, the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other majority assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.
The application of this test has been discussed in numerous Tribunal and Federal Court decisions. In Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789, Senior Member McCabe (as he then was) provided the following useful analysis:
16. Application of the criteria will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person's income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.
In Pelka v Secretary, Department of Family and Community Services [2006] FCA 735, French J noted:
47. The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of 'marriage-like', will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
The factors listed in section 4(3) of the Act are not an exhaustive list and no one factor is determinative, rather, consideration should be given to the total picture of the relationship created by all of the factors.[10]
[10] Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at [51].
The concept of separation was considered by Watson J in In Marriage of Todd (No. 2) (1976) 9 ALR 401, who said:
In my view 'separation' means more than physical separation - it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
[Emphasis added]
In Boskoski and Secretary, Department of Social Services [2014] AATA 915, the Tribunal stated at [63]:
In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.
What is clear is that all circumstances of the relationship that is being considered by the Tribunal are relevant. In Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 stated at [70]:
…being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
In Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415 the Tribunal observed that if the person's evidence is inconsistent with objective or the independent evidence before the Tribunal, the Tribunal should generally place greater reliance on that objective/independent evidence.
In RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35 the Tribunal considered that a person’s credit is of vital importance in determining whether they are a member of a couple.[11] The Tribunal stated at [35]:
In matters involving a determination of whether a person is a member of a couple or in a marriage-like relationship, an assessment of credibility is frequently of vital importance. The Tribunal has carefully considered the instances referred to in paragraph 33 of these reasons and the other matters before it and is satisfied that there are a number of telling inconsistencies and contradictions in the applicant’s evidence when compared with the other information available. Overall, the Tribunal is not satisfied that the applicant gave a truthful account of the essential matters pertaining to her relationship with Mr B…
[Emphasis added]
[11] This approach was endorsed by the Tribunal in Zablotsky and Secretary, Department of Social Services [2020] AATA 374 at [89].
APPLICANT’S EVIDENCE AT HEARING
At Hearing the Applicant told the Tribunal:[12]
[12] Transcript, pages 6-48.
·He does not understand how two people can live in a house and not share bills.
·The Toogoom Property is owned as tenants in common which is like a shareholder of 50/50 and means that any one person can sell their share or give it away to anyone and the other person has no right on that claim. Even if one partner dies the property does not pass to the other as in joint tenancy arrangements.
·He and Mrs Philip are not members of a couple as:
oThey are tenants in common.
oThere is no physical relationship or intimacy whatsoever.
oTheir telephone accounts are separate.
oThey do not share anything.
oRegardless of any house you live in there is common space that is looked after by all parties.
·He stated on his first form that his separation from Mrs Philip occurred on
25 May 2015. However, he did not lodge the form until March 2016 because he did not know at the time there was a thing called being separated and living under one roof.·When asked what was different between 2007 when things started to go not so well between him and Mrs Philip and the point in 2015 when he says he decided they were no longer together, that he does not know how to explain it, it was that the communication seemed to drop off completely. It started to get worse after 2007 because of his transgressions and it became worse and worse.
·When asked what changed in their relationship between the end of 2014 and mid-2015, that the communication stopped and there was no holding hands or going out or anything else. He said:
It didn’t happen sort of just overnight basically, you know. You can take so much and after some time you say, “Stop the bloody lot”, excuse the expression.
·When he said that he had, had enough that was when he decided to sell the house.
·When he had put in the first form, he said that he intended to live at the same address as Mrs Philip for 4 to 6 months because he was hoping to sell the house within that period of time.
·His intention was that they would go their own ways then, but the bank said he had to rollover the mortgage to the other house and it had to be purchased in both names. So, they did it as tenants in common rather than as joint tenants like they had been doing for the 50 years prior.
·He had to find a house, but there was no use trying to buy something when he did not have the money to buy something, he had to clear the debt first. Once he got a contract on their Narangba home (the Narangba Property) he started looking for a place and the bank said it had to be similar if he was going to claim a separate thing. So that is why he had to find something that had separate bedrooms and bathrooms, so they did not have to share all of those common facilities as such. That is when he came up to Toogoom.
·He had heard of Harvey Bay, but not Toogoom, he was driving past and had a look, saw a house he liked and put an offer on it.
·At the Narangba Property in 2016, he and Mrs Philip were sharing a bedroom.
·Agreed that his evidence in relation to the sale of the Narangba Property and the purchase of the Toogoom Property is that the reason he bought the Toogoom Property together with Mrs Philip was because that is the way the bank advised him to be the best method to allow him to still have a mortgage and line of credit.
·He intended to keep the line of credit so that he could eventually look for something by himself, because that was one way he could use and write it off on the debt of the Toogoom Property.
·Agreed that would mean that there would be an outstanding mortgage on the Toogoom Property that would remain in joint names and he would have a separate property in just his name using the line of credit.
·When put to him that would mean that Mrs Philip would be taking on a mortgage and he would effectively be getting a second property of his own and asked how when they were both on the age pension he planned to maintain a mortgage (over the Toogoom Property), of a house that he was then not going to live in, that:
No, you see, how the line of credit worked, I didn’t have to pay back anything as such. I would just pay the interest on it, it would just build up, you know. And what I was thinking of was buying something really cheap in the bush somewhere, something for about forty or fifty thousand dollars which I could live in it, I don’t mind. I’m from different circumstances, I know what it is too rough it out. So I was quite happy to do that and that’s why I went to have a look at places.
But when Mrs Philip found out that I was going to use this line of credit – or not so much Mrs Philip, my son because I was discussing with him this is what I’m doing and everything else. And he said, “Well, I told you not to have the line of credit and why did you get it?” So I told him because of this – the problem, that’s why I needed the line of credit. And he said, “No, you can’t do that because then the onus comes on mum to pay the line of credit as part of the bank loans.” Though, yes, in a way yes but – because it’s a joint thing the bank is going to come and ask her. But, again, I’ve got my 50 per cent share in this house which is mine which cannot ever become hers.
·Agreed that the mortgage and line of credit would be jointly held and they would both be liable.
·If he could not pay the mortgage the bank would sell the house and take it from his share as he was only going to use the line of credit.
·When put to him that the bank would not be concerned with who owns what as he and Mrs Philip would be jointly liable for the debt, that:
Exactly. They want their money. I’m not saying no but what I’m saying is my line of credit – when the house is sold, like, even say the house is sold, I get my share, she takes her share. Then if there was a mortgage on the property, then both of us would have to pay for it. But when there’s no mortgage on the property and I was only going to use my share of the property, I would also then give the bank the other property that I bought as security.
·When asked if that was his intention, did he also intend to draw up an agreement with Mrs Philip so that she had security around the arrangement, that she does not understand those things so there is no use trying to explain it to her.
·That is why he looked after the financial matters for them.
·It was his decision to sell the Narangba Property and look around at other properties and use the structure he had just explained, not Mrs Philip’s because he wanted to break up – there is no use living together when you are not happy so that was it, so it was his decision.
·The line of credit was in joint names but he was the one operating it. Mrs Philip never used the joint account or knew about it. The bank would send the credit cards in two names, she never touched the card, it sat in the drawer, when it expired, he would cut it up and throw it out.
·For the first 10 years of their marriage he was out at sea so Mrs Philip handled the finances and such, he used to just pay the bills, give her the money and she would organise it. As she was a lot younger she could do it, now she is not capable.
·After his 10 years at sea, Mrs Philip started working and had her own bank account and kept her money separately. He was still the provider and he did all the finances, all the money and expenses, came out of his pocket, from his earnings, he never asked her for a cent, he bought the cars and everything else because he was the one earning the big money.
·He had his own account, Mrs Philip had her own account and they had a joint account which was the line of credit.
·When asked if both pensions went into that joint account, no Mrs Philip’s pension when into her own account.
·When taken to the bank statements in the T-Documents that showed that not to be the case in 2016 at least, he agreed that both pensions were going into the line of credit and he was paying the bills for the house, the rates, electricity, water and insurance from the joint account.
·When asked if he gave Mrs Philip money for food noting that her pension was going into the joint account, and that he had said she did not access the account, that he never gave her any money for shopping, she did that herself because he thinks at that time she may have been using the credit card.
·When taken to the bank statements for the line of credit that showed in 2016 a balance of approximately $93,700 and then in October 2019 a closing balance just under $2,500, that the transfers coming in from the Bank of Queensland was from his account as he was responsible for the line of credit, at that point his pension was no longer going into the joint account.
·He changed where his pension was paid during that time as he was told he had to.
·When asked what happened to the $90,000 or more relevantly, the surplus of around $78,000 after the settlement of the Narangba Property, that once they brought the Toogoom Property, he also sold his car and put that into the line of credit and then the money went into renovating the Toogoom Property.
·When asked how the line of credit got closed, that:
Well, when the wife had heard that I put an offer on a property – this was before the pension was reduced, right, because I was still looking at houses. As I said, from the time I came here I was looking at houses. Eventually when I found something cheap I put an offer on the property.
That’s when she questioned me saying, “How are you paying for that?” I said, “I’ll use the line of credit.” She had then gone to the bank, unknown to my knowledge, and because she still had authority because the line of credit was in her name as well, they stopped the line of credit. That’s why she had told them to stop the line of credit and they agreed. So I could not proceed with the purchase because I had no money to purchase unless this house gets sold, the current house we are living in.
So I had to give up that. So when it says that I did not try to find other accommodation or anything else, that is also wrong in my opinion. It’s erroneous, whatever word you want to use for it, because I was trying. It was not for want of trying. It’s just financially I was incapable of proceeding any further unless (indistinct). So that was when Centrelink said, “You’ve got to close the joint account.” So when I closed the joint account that completely went (indistinct). See, while the joint account was still there I still had my (indistinct). I still could have gone myself and told the bank I will open the line of credit again because the house was still mortgaged. See the (indistinct) but the house was still mortgaged.
·When taken to the documents before the Tribunal in relation to the closing of the line of credit, in particular a letter where he had indicated that they were closing it together, that yes that was the only way to do it.
·When put to him that he had earlier said that Mrs Philip went into the bank and closed it on her authority, however now he was saying that they did it together, that one person cannot close the account because you are discharging the mortgage, Mrs Philip only told them to stop or hold the line of credit. The mortgage was still on the property and still had to be closed to clear the title. Centrelink told him to close the joint account because that is one of the things they wanted to prove that they were doing their own finances.
·When asked was he saying the line of credit, being the joint account got closed because Mrs Philip put a hold on it so that it could not be used or because Centrelink told him to, that Mrs Philip went to the bank and told them to stop the line of credit, nothing to do with the loan account as such just do not let him touch the money. The line of credit was still untouched, it still had $147,000 or whatever available to him to buy his own property. So, Mrs Philip held that money back and then Centrelink said he had to prove that they had separate accounts, close the joint account, so that is when he had to go and close the joint account.
·To close the joint account that is when the bank wanted them both there because the title of the property is in both names.
·He agreed his contention had been that without the line of credit he was not able to purchase a property of his own and that now the only way he can purchase another property is by selling the Toogoom Property.
·He needs Mrs Philip to agree to sell the Toogoom Property as she has a half share but she has refused to agree and he is trying to get legal advice about how he can force her to sell the house.
·Mrs Philip said she has shifted 20 times with him and so she is not going to do that anymore.
·He got agents to come in and value the Toogoom Property and told Mrs Philip that they will get their money back and that she can take her share, he can take his share and they can go their own way but she said she is not selling the house, full stop. She is sick of shifting and he cannot blame her, because of his job they moved a lot.
·The real estate agent will not put the Toogoom Property on the market without Mrs Philip agreeing.
·When asked if he was saying that Mrs Philip thought that when they moved to the Toogoom Property that was going to be her forever home, that was correct.
·When asked how she could think that if they were no longer members of a couple, “No, well, she just thought that it was her house because she’s got half a share in it, right. She’s got tenants in common, she’s got the authority, so that’s her house.”
·When asked if Mrs Philip was aware that they were purchasing the Toogoom Property as tenants in common or what that meant as he had previously given evidence he organised the sale and purchase of the properties and everything else, that “she signed the paperwork”.
·He agreed that for the previous 20-30 years he had actually organised all the paperwork.
·When asked that if over the time they were together he was making all of the decisions what would have made this decision-making process any different, especially given Mrs Philip gave evidence to the SSCSD that she was not aware of all of the details of what happened and why it happened because he looked after all of that stuff, that:
Yes, because I’m the one who’s been buying and selling the houses basically. You know, I’ve been the one. But all the houses previously have always been as joint tenants. Actually one house was bought totally in her name because when I was in Darwin she had one house just to her name. But then when I had my first heart attack, that’s when I decided to come back up to Queensland. That’s when we sold the Darwin property to come here to Queensland. But, yes, I did all the transactions, there’s no doubt that I bought all the time. And even the car which she said is hers, I paid half the money for that. She’s probably still not aware of that.
·That they had two cars and then he sold his car and upgraded Mrs Philip’s car so that he would be happy, she did not want to get rid of her car.
·The car is registered in both names, they are both responsible for the running costs and registration, they share half each.
·When asked that if his intention was to go and buy a house and live on his own why would he sell his car, how did he plan to do that without a car of his own, that the arrangement was that whoever wants the car gets the car and then they pay the other person out and they can buy their own car.
·That was how it worked if one of them wanted to keep their car they would have to pay the other out or it would have to be sold. When asked if Mrs Philip agreed to this, he said that she had no option, because if he can sell the house, they have to sell the car as well, he does not want the furniture she can keep that.
·If the line of credit was still there he would have used it to buy himself a house and car.
·After the joint account was closed, they pay half of the electricity, gas, rates, internet and car and house maintenance bills each. If he goes and buys something he shows Mrs Philip the receipt, telling her how much she needs to pay him back.
·Mrs Philip gives him a cheque to cover her half of the bills.
·Confirmed that the appraisal of the Toogoom Property at June 2021 was between $375,000 and $385,000.
·When asked if that is the case, did that not mean that the forms he submitted to Centrelink stating that he could not afford to live separately or get divorced were incorrect, that now it was not the money, the world is basically against him because of his religion, but if push comes to shove and he has to get a divorce, his religion will have to take a second step because he has to think of the few years he has left.
·His health is deteriorating fast.
·He and Mrs Philip do not talk to each other. He has a little separate stove in the garage that he does his cooking on.
·Mrs Philip buys her own meals and does her own cooking. She buys the dog food and pays for its medical bills, because the dog is hers, he told her not to get a dog in the first place.
·They have two fridges and their own areas in each fridge.
·They do their own shopping, they do not go out together.
·The only times Mrs Philip has been out with him was to sign documents or when she came and picked him up from the hospital and once or twice when he has picked her up from the hospital.
·That he is not going to pay $70 for a cab to get home from the hospital when they have a car sitting at home that he has paid for, it is his and Mrs Philip’s but that is the mutual understanding. He would do that for the neighbour if they asked.
·When asked what his relationship was like with Mrs Philip prior to 2015, that early on they had a happy married life but everything, it gets stale after some time and you might think the grass is greener on the other side or whatever. He does not know but something happened. He faulted but that was 20 years ago and since that there has been no relationship, but they were still together he supposes because of the children, they are all grown up now and they know what is happening. Intimacy stopped about 20 years ago but they would still hold hands and go to the local pub together and have a meal, they were sort of married. It got worse after he had heart surgery.
·Up until his heart surgery in 2015 he was receiving a part pension as he was still working, but after the surgery he could not work anymore.
·Between 2005 and 2015 it was okay but from 2015 the communication, doing things together and being a couple stopped. That is when it became quite clear to him that was enough, he could not take it anymore and he had to do something about it.
·When asked when he says they told their friends and family that they had separated, that it was sometime after 2016, when he went to India, he told them there.
·He does not talk much to the neighbours and does not know if they think he and Mrs Philip are separated.
·He told their son and daughter years ago that they had separated.
·When asked when that was, as in the 2016 forms he had said they had not told anyone, that it was in 2015 at the Narangba Property because his daughter has since stopped coming there, she only came once when his son was there as well. His son is not happy about the whole situation.
·When asked why in 2018 or 2019 when he is saying that he and Mrs Philip were fully separated and their son knew that, did he invite them both to Bali to celebrate Mrs Philip’s 75th birthday, that Bali was a special place where they spent a lot of time as a family when they were living in Darwin.
·When put to him that it did not make sense that if he and Mrs Philip were not communicating at all, live in a house together but do not want to live together, their son knows that, that he would take them both on a holiday, where they shared a villa, for an occasion that was all about Mrs Philip, that he could not explain it, the Tribunal would need to ask his son.
·When put to him that was the problem, that he did not ask anyone to give evidence supporting his contentions, not his son, daughter or even Mrs Philip, that he had not provided witness statements or called them to give evidence, that he did not think of it.
·He and Mrs Philip went to Sydney for Christmas two or three years earlier and stayed with his sister, their daughter went too.
·When asked why Mrs Philip went, that she was close to his sister and it would give her the opportunity to see their son and the family.
·While they do not communicate very much, they can get along together when they have to.
·He would not say they are friends, Mrs Philip is another human being.
·Confirmed they had been married for around 57 years.
·They are both able to be in a relationship with someone else if they wanted to – they could move someone else into their half of the house if they wanted to, but he is not interested in that.
·They are each other’s responsible person when they are discharged from hospital. He assisted Mrs Philip to get to her appointments after her hip surgery, initially he helped her get out of the car and probably held her hand but she recovered very quickly.
·Mrs Philip assisted him after he came home from his procedures and he would have been disappointed if she had not because he would do that for any human being and he expects the same.
·That in December 2019 when he had several falls Mrs Philip would help him get to the nearest door so he could get himself up.
·If he was in a situation where he was unable to go home from hospital unless there was someone there to take care of him because he was unable to live independently, he was not sure whether Mrs Philip would look after him. If Mrs Philip was in that situation he would look after her because he would do it for a human being.
·When put to him he would not do it for just anyone, that he would not do that for a neighbour, that he would do it for a neighbour.
·When asked about why he has granted Mrs Philip a life right over his part of the Toogoom Property and his part of the car in his Will, that is so the children cannot evict her or make her sell.
·He left his share to his children so that Mrs Philip does not get it but with the proviso that they cannot forcibly make her, their mother, sell. Money is the thing he has seen through other people that make children not care about their parents. He said he is not sure his children would try and throw her out, but money does strange things.
·When put to him that he went to mediation because he wants Mrs Philip out of the house, he wants her to sell and asked what the difference between him wanting her out and the children wanting her out if something happened to him, that the difference is that him wanting Mrs Philip to move out is because he cannot move out unless she moves out, but when he dies he does not want her to lose that house to live in, because by then he will not be living anywhere.
Under cross-examination, the Applicant told the Tribunal that:[13]
[13] Transcript, pages 48-57.
·He started looking for his own property shortly after he moved to the Toogoom Property on the internet to see what he could afford because he did not know the area.
·When his living arrangements were getting more intolerable, he hired a car and went and looked at properties.
·He was actively searching in mid-June 2020 for his own property.
·Prior to that he may have called a couple of real estate agents but for actually designing a little house that may be suitable for him.
·He was looking for places that were close to medical facilities.
·He is the person who would try and get a better deal for utility prices, all the bills come in his name and the providers contact him.
·When they moved into the Toogoom Property they purchased a new stove, washing machine and dishwasher. When asked why he bought new products if he was going to move out, that they still had to use something when they were living there.
·They could not bring their old white goods because he never moves white goods, on this occasion though he did bring the fridge.
·When he purchased the new washing machine, he made the decision as to what machine to purchase and did not consult Mrs Philip. It was a completely different machine to what she was use to and their son had to show her how to use it.
·Mrs Philip is fine for him to make those decisions on her behalf.
·Mrs Philip is more dependent on him that he is on her.
·His local priest at St Joseph’s Catholic Church is Father Jerboas, he is an Indian priest.
·He does not go to church much, mainly at Easter and Christmas.
·He had never talked to Father Jerboas or another priest about his marital difficulties.
·One of the primary reasons that he had not gotten divorced is because of his religious beliefs. He has not sought to talk to a priest about his situation because his religion is within his heart, he does not go to mass every Sunday. He is not the Christian he use to be in India.
·When put to him that he is not a particularly religious person but his reason for not getting a divorce is more a cultural one, that was correct. He was bought up very religious but after he came to Australia, he stopped going to Church so much.
·There is not a local Indian community in Toogoom, he thinks he is the only Indian there but in Harvey Bay it is different.
·He is not actively engaged in the Indian community. He is a member but he does not attend any of the functions.
·He does not really care what they think of him.
·It is fair to say he is not a practicing Roman Catholic.
·He does not want to get a divorce because the vows are ingrained in him. If push comes to shove then he will get a divorce.
·When asked about adultery, that it is something that he has never practiced, but was close to getting it that way, but it never happened. It was never heard of or talked about in the society that he was brought up in. All of these things are western traditions, it probably happened in India, but you never heard of a divorce.
·Mr Tweedie was an old neighbour of theirs that he would consider him to be a friend. Mr Tweedie is also Mrs Philip’s friend. When he visited the Applicant and Mrs Philip they all shared coffee and chatted.
RESPONDENT’S CONTENTIONS
The Respondent contended when looking at the factors outlined in section 4(3) of the Act overall, the Applicant was at all material times a member of a couple with Mrs Philip. The Respondent’s contentions in relation to each factor are set out below.
The financial aspects of the relationship
The Respondent contended that the financial aspects of the relationship weigh in favour of the Applicant and Mrs Philip being members of a couple.[14] The Respondent sought to rely on the fact that the Applicant and Mrs Philip:[15]
(a)Held a joint account together with Commonwealth Bank of Australia until October 2020 (T14);
(b)The Applicant utilised the joint account to maintain a credit card for his personal use (T12, 121, T2, T1);
(c)The Applicant and Mrs Philip benefit from pooling of resources to pay for household bills such as that for council rates, gas, internet and electricity (T8, 95, 99 – 102; ST2, 22, 26 – 29);
(d)The Applicant and Mrs Philip purchased a car together in 2018 for which the running costs are split evenly (T8, 101; ST2, 28);
(e)The Applicant and Mrs Philip purchased the Toogoom Property together in 2016 (T7, 86);
(f)The Applicant and Mrs Philip jointly own all of the household goods, with there being no arrangements in place should either move out (T8, 101; ST2, 28); and
(g)The Applicant has given Mrs Philip a significant life interest in his estate (ST3).
[14] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, page 8, paragraph 56.
[15] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, pages 8-9, paragraph 56.
The nature of the household
The Respondent contended that the nature of the household weighs in favour of the Applicant and Mrs Philip being members of a couple.[16] The Respondent sought to rely on the following:[17]
·The Applicant and Mrs Philip share the tasks of cleaning the house on a rotational basis (T2, paragraphs 20-27);
·The Applicant and Mrs Philip jointly share common use of household items such as furniture and a car (T8, 101, ST2, 28);
·Mrs Philip gave evidence at the SSCSD that matters of finance are taken care of by the Applicant, such as the purchasing of the Toogoom Property and the decision to purchase a common car (T2, paragraphs 28-31); and
·While the Applicant and Mrs Philip contend that they have had separate bedrooms since 2015 (T8, 98, ST2, 25, ST9), the weighing of the evidence in relation to the nature of the household ultimately supports a finding that the Applicant and Mrs Philip are members of a couple.
[16] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, page 9, paragraphs 59-61.
[17] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, page 9, paragraphs 59-61.
Social aspects of the relationship
The Respondent noted that there is limited evidence on the social aspects of the relationship between the Applicant and Mrs Philip and contended that the available evidence suggests that there is no social aspect to the relationship.[18]
[18] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, pages 9-10, paragraph 62.
The Respondent conceded that the available evidence supports a finding that the social aspects of the relationship weighs in favour of finding that the Applicant and Mrs Philip are not members of a couple.[19]
[19] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, page 10, paragraph 63.
Sexual relationship
The Respondent contended that although there is no evidence of a sexual relationship between the Applicant and Mrs Philip from the date of their claimed separation, the absence of a sexual relationship is not a conclusive indicator of a complete breakdown of the relationship. It is just one factor that must be considered in determining whether the parties are living separately and apart on a permanent or indefinite basis.[20]
[20] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, page 10, paragraph 64.
The nature of the commitment to each other
The Respondent contended that the nature of the commitment between the Applicant and Mrs Philip weighs in favour of a finding that they are members of a couple.[21] The Respondent submitted that:[22]
65.The Full Federal Court in Pelka and Secretary, Department of Families, Community Services and Indigenous Affairs (2008) FCAFC 92 at [30] stated that the nature of the commitment has to be qualitatively different from the commitment that either party to the relationship has to any other person. Mutuality of the commitment is essential: Pelka at [46] and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404 at [61].
[21] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, page 10, paragraph 66.
[22] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, page 10, paragraph 65.
The Respondent noted:[23]
[23] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, pages 10-11, paragraphs 65-72.
·Neither the Applicant nor Mrs Philip will be moving out of the Toogoom Property in the near future. Mrs Philip has stated that she believes she will continue to live with the Applicant until she dies (ST2, 22) and that there was no intention to cease living together as it was not financially viable to live apart (T2, paragraphs 38-31).
·The Applicant as at 23 December 2019 noted that he could not state when he would cease living with Mrs Philip without going onto rental subsidies (T8, 95).
·The Applicant in his application for review notes that he is unable to purchase himself a property without a line of credit and therefore is unable to move out (T1).
·The Applicant as at 12 August 2021 advised that he and Mrs Philip were unable to come to an agreement to sell the Toogoom Property (ST16, 75).
·The Applicant has no intention of divorcing Mrs Philip on the basis of the financial cost and his religious beliefs (T2, paragraph 9; ST12).
·Mrs Philip has no intention of divorcing the Applicant due to the financial costs and his beliefs, but also stated that she is open to being divorced (T2, paragraph 34).
·The Applicant’s faith-based objection to getting a divorce is a recent reason and not one put forward between 2016 and 2019.
·Mrs Philip’s response to whether or not the relationship can be reconciled in her SS293 forms has varied over the years, however in the December 2019 form she noted that she is willing to reconcile with the Applicant after 55 years of being together (ST2, 22).
·The Applicant has acknowledged that on at least one occasion each that he and Mrs Philip have assisted each other either going to or coming from hospital (T17,139).
·Mrs Philip noted on 22 December 2019 that she has assisted the Applicant on several occasions when he has had falls (ST3, 25).
·In her evidence to the SSCSD, Mrs Philip stated that she relied on the Applicant for organising financial things and that the Applicant decided more or less that they needed to purchase a new car together (T2, paragraph 31).
The Respondent contended that:[24]
·An inability to purchase real-estate or find a rental property is not a sufficient explanation for why the Applicant continues to cohabitate with Mrs Philip.
·As at 21 February 2021 the Applicant’s bank statement showed he had available funds of $8,822.22 (ST4, 45) which is a sufficient amount of savings for him to move out on his own.
·At the time of selling the Narangba Property the Applicant had sufficient money from the proceeds of the sale to either move into a rental or purchase a property on his own (T7, 81), despite this the Applicant elected to purchase a new property with Mrs Philip. This indicates an ongoing commitment.
·The Applicant and Mrs Philip can afford the cost of a divorce and it is open to the Tribunal to conclude that they have decided not to divorce due to their commitment to the relationship.
·The evidence shows there is underlying commitment between the Applicant and Mrs Philip to continue to support and rely on each other.
·The Applicant’s appointment of Mrs Philip as the sole executor of his Will and her life interest in his estate (ST3) is compelling evidence of a member of a couple relationship.
·The weight of the evidence compellingly indicates that the Applicant and Mrs Philip remain committed to one another and that this criterion weighs heavily in favour of a finding that they have been coupled since at least 10 July 2020.
Conclusion
[24] Exhibit 3, Secretary’s Statement of Facts, Issues & Contentions, pages 10-11, paragraphs 65-72.
The Respondent contended that:[25]
73.The evidence before the Tribunal is insufficient to support a conclusion that genuine separation has occurred, particularly in circumstances where the Applicant and Mrs Philip’s continue to benefit from pooling of resources, a shared household and an ongoing commitment to one another.
74.The Secretary concludes that on an objective assessment of the totality of the evidence, the Applicant and Mrs P have been members of a couple since at least 10 July 2020.
75. The Secretary seeks for the Tribunal to affirm the AAT1 decision dated [29 January 2021].
[25] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, page 11, paragraphs 73-75.
At Hearing the Respondent observed that there had been a number of inconsistencies in the Applicant’s evidence in relation to the line of credit and that it did not make sense that he somehow thought he could use the line of credit to buy a new house, when Mrs Philip would be left with a mortgage over the Toogoom property and he would have taken the benefit.[26]
[26] Transcript, page 59.
The Respondent drew the Tribunal’s attention to the decisions of RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35 at [35] and Zablotsky and Secretary, Department of Social Services [2020] AATA 374 at [89] that bring forward the premise that in making an assessment about whether a person is a member of a couple, the persons credibility and consistency of the evidence is important and that where there is inconsistency with the objective facts, the objective facts should be preferred.[27]
[27] Transcript, page 59.
The Respondent contended that the inconsistencies in the Applicant’s evidence at Hearing regarding the line of credit and his reasons for not getting a divorce favours a finding in relation to the nature of commitment to each other that he and Mrs Philip were members of a couple.[28]
[28] Transcript, page 59.
CONSIDERATION
At Hearing the Applicant openly answered the questions of the Tribunal and Respondent. What was clear from the Applicant’s evidence was that he had not been happy in his marriage with Mrs Philip for some time. This does not however mean that he ceased being a member of a couple with Mrs Philip, many marriages are unhappy.
What was not clear was, when there had been any real change in their relationship between the period prior to 2016 and in the lead up to both 10 July 2020 and the date of Hearing.
While communication may have become more strained, what is of note is that Mrs Philip in late December 2019 indicated in a relationship detail form that she would probably live with the Applicant until she passes as she could not afford her own home (which was consistent with the evidence she gave to the SSCSD).[29] Further when the form asked whether she thought there was any possibility that she and the Applicant would get back together she answered not sure and provided “After nearly 55 years one would hope so”.[30] Mrs Philip also at that time, indicated that she and the Applicant provide care and practical support to help each other with illness and that they share social and leisure activities for family occasions.[31]
[29][30] Exhibit 2, Supplementary T Documents, ST2, pages 22-25, SS293 Form completed by Mrs Philip
[31] Exhibit 2, Supplementary T Documents, ST2, pages 22-25, SS293 Form completed by Mrs Philip.
The Tribunal accepts that the Applicant was looking at rural properties after he and Mrs Philip moved to the Toogoom Property. However, there is no sensible explanation before the Tribunal as to why, if the Applicant seriously intended to separate from Mrs Philip in 2016 as he told the Tribunal was the case, that did not occur at the time they sold the Narangba Property. Nor is there any sensible explanation as to why when the Toogoom Property was purchased that he chose to dispose of one of their vehicles, renovate their new home and purchase new white goods for a home he claims he did not intend to live in, or at least not for long.
Further, in relation to the line of credit attached to the Toogoom Property and the Applicant’s plan to use it to purchase his own property, a car and new furniture, while acknowledging that Mrs Philip would be jointly liable for the debt he would have subsequently jointly accumulated for his sole benefit is unconscionable.
The Tribunal notes the decision in Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415 where the Tribunal placed greater reliance on independent evidence than that of the Applicant stating that the evidence of the Applicant in that case “should be closely scrutinised and should not be accepted by the Tribunal unless it is ’substantiated by independent and verifiable evidence”.[32]
[32] Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415 at [41].
The Applicant’s evidence in relation to the line of credit, the way it operated and was closed was contradictory. As was the evidence he gave in relation to why he had not begun divorce proceedings. The Applicant started from a position that his religious beliefs meant that he could not seek a divorce, going to it being a cultural belief to saying that, if he has to, he would seek a divorce.
The Applicant’s evidence in relation to he and Mrs Philip traveling to Sydney together to see family and on a holiday to Bali with their son for Mrs Philip’s 75th birthday is not consistent with his evidence that he had told his children and family that they were separated. If that be the case it seems illogical that their son would take his father on a holiday to celebrate a milestone birthday of his mother and have them share a villa and bed for the duration of the holiday. Especially in circumstances such that their relationship had broken down to the extent purported by the Applicant.
The Applicant tried to paint a picture that the only reason he provided any form of care or support to Mrs Philip when she was ill was because she was a human being and that he would do the same for anyone. At no stage through either the documentary evidence before the Tribunal or in providing his evidence at the Hearing did the Applicant demonstrate or provide any examples of his generosity towards his fellow human beings in general.
The evidence before the Tribunal is that the Applicant has and continues to take care of the marriage finances and financial obligations. He solely makes the decisions in relation to the sale and purchase of their homes, the providers and rates of utilities and makes the payments in relation to their bills.
The Applicant’s evidence is that he and Mrs Philip cannot afford to get a divorce or go their own way. However, that is clearly not the case and was definitely not the case upon the sale of the Narangba Property. Further, he claims he cannot take steps to cease living with Mrs Philip as she will not agree to sell the Toogoom Property.
That is an interesting point. The Applicant’s evidence which is supported by evidence previously provided by Mrs Philip was that he looked after the purchase of the Toogoom Property and it appears that she just signed when asked to. The Applicant made the decision in relation to the purchase of the property, including how the property would be held. The Applicant said he had instigated mediation in relation to the sale of the property however, also told the Tribunal he understood that when they moved to the Toogoom Property Mrs Philip considered it her forever home. He told the Tribunal it was reasonable for her to not want to move again, however in the next breath indicated that he wants her to move for the sake of his own happiness.
The Applicant’s evidence was that purchasing the property as tenants in common rather than as joint tenants separated their interest, which while correct, he has chosen to override such separation through his Will. Given the attitude of ambivalence that he tries to portray towards Mrs Philip he was very concerned that she is not made to leave the Toogoom Property should he pass away and his title pass to their children. It is entirely possible that the current arrangements would see their children inheriting the whole property after the passing of both parents and only at that stage having clear title and use and enjoyment of the property.
The Applicant did not articulate any explanation as to how his children would be able to force Mrs Philip to move out simply by inheriting his share of the Toogoom Property. The Applicant gave evidence that he has approached agents who have refused to put the property on the market without the agreement of Mrs Philip. The Tribunal does not accept the Applicant’s explanation to be a reasonable nor rational explanation for the structure of his Will and instead views its structure as an example of the Applicant’s ongoing commitment to Mrs Philip.
The Applicant made references to having to close the joint account and purchase a home where he and Mrs Philip had separate rooms, bathrooms and rights on the title to demonstrate that they were separated. The Applicant indicated he was told that needed to happen by Centrelink. The Applicant did not contend that he made such decisions because he and Mrs Philip were separated, rather his primary concern appeared to be satisfying Centrelink that he was entitled to be paid the aged pension at the single rate.
It has not escaped the attention of the Tribunal that the Applicant did not call any witnesses to give evidence at the Hearing. He asserted that he had not thought to do so. The Tribunal finds that difficult to believe, noting that Mrs Philip gave evidence at the SSCSD Hearing.
Further, it is unclear why, if the Applicant’s son and his siblings were aware of his alleged separation from Mrs Philip, that he did not seek written statements of support from them or to call them to give evidence at the Hearing. This is further puzzling given that the Applicant sought to rely the written statement of Mr Tweedie, an old neighbour and friend of his and Mrs Philip. The Tribunal places very limited probative value on the statement of Mr Tweedie in circumstances where he was not made available at Hearing for cross-examination. The extent to which Mr Tweedie’s statement is informative, is that it confirms that the Applicant and Mrs Philip have separate bedrooms in the Toogoom Property.
Given the inconsistencies and illogical nature of the Applicant’s evidence the Tribunal considers that his evidence should not be accepted in the present situation where independent and verifiable evidence has not been put before the Tribunal to substantiate his claim that he was not and is not a member of a couple with Mrs Philip.[33]
[33] RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35 at and Zablotsky and Secretary, Department of Social Services [2020] AATA 374.
The Tribunal finds that the evidence before it indicates that the factors relating to sexual and social aspects of the relationship do not of themselves lead to a conclusion that the Applicant was a member of a couple with Mrs Philip. It is the whole situation however, that must be taken into consideration.[34]
[34] Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050.
When considering the evidence in relation to factors regarding the financial aspects of the relationship, nature of the household and commitment to each other, the Tribunal finds that these factors weigh in favour of finding that the Applicant and Mrs Philip were members of a couple. This is especially the case given the continued pooling of finances, the Applicant’s continued control of household bills, the care and support they offer to each other, Mrs Philip’s hope of reconciliation and the Applicant’s underlying concern relating to the wellbeing of Mrs Philip and her use of the Toogoom Property should he pass away. The Tribunal considers that the evidence before it does not demonstrate that a genuine separation has occurred.
Consequently, in considering the tests set out in section 4(3) of the Act together with the evidence before the Tribunal in a holistic manner, the Tribunal finds that on balance, the Applicant was from at least 10 July 2020 and at the date of Hearing, continued to be a member of a couple with Mrs Philip.
CONCLUSION
For the reasons set out above, the Tribunal finds that the Applicant was, and since at least 10 July 2020, has been a member of a couple for the purposes of section 4 of the Act.
Consequently, the Tribunal finds that the Applicant’s correct rate of age pension is the partnered rate.
The Tribunal affirms the decision under review.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
..............[SGD]..................
Associate
Dated: 23 December 2021
Date of hearing: 9 September 2021 Applicant: By Phone Advocate for the Respondent:
Solicitors for the Respondent:
Mr Samuel Harvey
Services Australia
ANNEXURE A
Background Facts, sourced from the Respondent’s Statement of Facts, Issues & Contentions as referred to in paragraphs 5 and 6 above.
4.On 29 March 2016 and 16 May 2016 the Applicant and Mrs Philip applied to the Agency to be considered as separated under one roof and completed Relationship Details – Separated Under One Roof (SS293) forms with supporting evidence (T5, T6).
5.On 10 June 2016 Services Australia (the Agency) assessed the Applicant and Mrs Philip as being separated under one roof from 29 March 2016 (T16, 128, T18, 158-159).
6.The Applicant in his SS293 form dated 29 March 2016 stated that he intended to continue living with Mrs Philip for four to six months. That he and Mrs Philip separated on 25 May 2015, that they did things separately and that there was no communication between them nor any intimacy, with no prospect of reconciliation (T5, 33). The reason the Applicant gave as at 29 March 2016 for not filing for divorce was the costs associated (T5, 34).
7.Mrs Philip in her SS293 form dated 16 May 2016 declined to specify a time period for when she and the Applicant would cease living together, nor provided a date of separation. Mrs Philip noted she was not sure whether reconciliation was possible (T6,53) and gave no reason for why divorce proceedings had not being initiated (T6, 54).
8.In 2016 the Applicant and Mrs Philip owned a property and held a joint account together which they used to pay for joint expenses (T5, 34, 37-38; T6, 54, 58). In 2016 the Applicant and Mrs Philip each had separate cars (T5, 40; T6, 60).
9.On 18 November 2016 the Applicant and Mrs Philip signed a contract to purchase the Toogoom Property for $245,000 as tenants in common (T7, 88). On 19 December 2016 the Applicant and Mrs Philip sold their home at [Narangba Property] (the Narangba Property) for $413,000 (T7, 92). As at 19 December 2016 the Applicant’s line of credit was negative $100,710.97 prior to settlement and after settlement became positive $77,952 after $178,663 was credited to the account (T7, 81).
10.On 3 January 2017 the Applicant provided a further SS293 form. In that form [the Applicant] noted that he and Mrs Philip intended to live together for more than six months and did not specify how long this arrangement would continue (T7, 69). That form noted that the Applicant and Mrs Philip had purchased the Toogoom Property where they resided together (T7, 69, 71). The reason the Applicant gave as at 3 January 2017 for not filing for divorce was the costs associated (T7, 71).
11.On 1 January 2017 Mrs Philip completed a further SS293 form. In that form Mrs Philip declined to specify a time period for when she and the Applicant would cease living together nor provided a date of separation (ST1, 1). Mrs Philip stated that nothing had changed since she separated from the Applicant but noted that there was no intimacy in the relationship and that there was no prospect of reconciliation (ST1, 1). The reason that Mrs Philip gave as at 1 January 2017 for not filing for divorce was the costs associated (ST1, 3).
12.As of January 2017 the Applicant and Mrs Philip continued to reside together and hold a joint account together which they used to pay for joint expenses (T7, 69, 71, 74, 75; ST1, 1, 3, 6, 8 and the Applicant and Mrs Philip shared the same car owned by Mrs Philip (T7, 77; ST1, 9).
13.On 23 December 2019 the Applicant provided a further SS293 form. In that form [the Applicant] noted that he could not state when he would cease living with Mrs Philip and the reason he provided was that he and Mrs Philip would need to go on rental subsidies (T8, 95). The reason the Applicant gave for not filing for divorce was the costs associated and that it was against his religion (T8, 95).
14.The Applicant noted that he and Mrs Philip shared the costs for the property, held a joint account together to maintain a line of credit, shared the costs of household bills, both jointly owned a car purchased in 2018, with the costs paid for jointly, and the Applicant also noted he had no will (T8, 95, 99 - 102).
15.The Applicant noted that he and Mrs Philip did not prepare meals for each other, cooked at different times, used separate bathrooms, had separate bedrooms, the Applicant noted he had his own Medicare card, noted that both paid for and did the grocery shopping and both did the cleaning of the house and washing with the gardening shared, the Applicant noted that furniture in the house was jointly owned with no plan on how to split the furniture, and that the he and Mrs Philip had separate health insurance and no joint insurance (T8, 97, 99 - 102).
16.The Applicant noted that he and Mrs Philip did not holiday together, that friends, family and associates did not consider he and Mrs Philip to be partnered, and only socialised together for family occasions with their adult children (T8, 98). The Applicant noted that he and Mrs Philip were invited as a couple to a street Christmas Party (T8, 98).
17.The Applicant noted that there was no sexual nature to the relationship (T8, 98).
18.The Applicant described that the care and practical support he provided to Mrs Philip as neighbourly (T8, 98).
19.On 22 December 2019 Mrs Philip completed a further SS293 form. In that form Mrs Philip stated that she had no idea when she would cease living with the Applicant and guessed that she would continue to live with him until she died. The reason Mrs Philip gave for the continued living situation was that she could not afford her own home. On whether she and the Applicant might reconcile Mrs Philip noted that she was not sure and that after nearly 55 years of being together she hoped they would. The reason the Mrs Philip gave as at 22 December 2019 for not filing for divorce was the costs associated (ST2, 22).
20.Mrs Philip noted that she and the Applicant shared the costs for the property, held a joint account together but that she never used it and it was for a line of credit, Mrs Philip noted that they shared the costs of household bills, that she and the Applicant both jointly owned a car purchased in 2018 with costs paid for jointly, and the Applicant also noted she had no will (ST2, 22, 26 – 29).
21.Mrs Philip noted that she and the Applicant did not prepare meals for each other, or eat together, cooked at different times, used separate bathrooms, and had separate bedrooms. Mrs Philip noted she had her own Medicare card, noted that both she and the Applicant paid for the grocery shopping, that both did the cleaning of the house and that both did the laundry and both did the gardening. Mrs Philip noted that furniture in the house was jointly owned with no plan on how to split the furniture, and that the she and the Applicant had separate health insurance and no joint insurance (ST2, 24-29).
22.Mrs Philip noted that since separating either she or the Applicant had claimed to be a member of a couple, but then noted that she was socially disconnected. Mrs Philip noted that she and the Applicant did not holiday together, that she and the Applicant were invited as a couple to a Christmas Party, but that friends, family and associates did not consider she and the Applicant to be partnered, and that they only socialised together for family occasions (ST2, 22, 25).
23.Mrs Philip noted that there was no sexual nature to the relationship (ST2, 25).
24.Mrs Philip noted that she has helped the Applicant when he has had falls (ST2, 25).
25.On 10 July 2020 the Agency assessed the Applicant and Mrs Philip as members of a couple and adjusted the Applicant’s rate of Age Pension accordingly.
26.On 8 September 2020 the Applicant sought review of the 10 July 2020 decision. In seeking review the Applicant provided a statement as to why he should be assessed as separated under one roof (T12, 121). In that statement the Applicant contended that in 2016 he and Mrs Philip had decided to sell their home and separate. The Applicant explained that they purchased a new property together as tenants in common so as to ensure he had continued access to a credit card, which he could only get if he had a line of credit through a mortgage over the new house.
27.On 17 September and 19 September 2020 the Applicant made enquiries for the purpose of purchasing a property [in Surat] (ST10).
28.On 29 September 2020 the Applicant provided a further statement noting that he and Mrs Philip were closing their joint account (T14).
29.On 7 October 2020 the Applicant provided another statement noting that the joint account was closed and that he and Mrs Philip had separate bank accounts and telephone accounts (T15).
30.On 14 October 2020 the Authorised Review Officer affirmed the decision to find the Applicant and Mrs Philip as members of a couple (T16).
31.The Applicant sought further review with the Administrative Appeals Tribunal on 30 October 2020 (ST12, 56). On 3 November 2020, 24 November 2020, and 1 December 2020 (T17) the Applicant submitted further statements to the Tribunal. In these statements the Applicant contended that he had attempted to purchase a different property for himself to reside in but that this was no longer possible without a line of credit which he had extinguished upon closing the joint account. The Applicant acknowledged that he and Mrs Philips had attended yearly Christmas street parties. A copy of the 2020 Christmas party initiation was attached and this invitation was addressed to the residents of the local area. The Applicant also noted that he and Mrs Philips had on one occasion each helped the other with going to or coming from the local hospital.
32.On 4 January 2021 the Applicant made his Last Will and Testament (ST3). In that document the Applicant appointed Mrs Philip as his executor and bequeathed the entirety of his estate to his two children on an equal share, on condition that Mrs Philip be provided a life interest in the entirety of the estate for her sole use and benefit until she decides otherwise.
33.In a hearing before the Social Services & Child Support Division on 29 January 2021 the Applicant gave evidence (T2, paragraphs 20 - 27) that he and Mrs Philip are both Catholic, and marriage is sacred, and for religious reasons they had not divorced. The Applicant also contended that the financial costs of divorce made it unfeasible. The Applicant explained that he sold his car and then shared the use of Mrs Philip’s car. The Applicant noted that Mrs Philip’s car was not suitable to his needs, so it was agreed to purchase a new car which suited both he and Mr[s] Philip. The Applicant explained that the household cleaning tasks were done on a rotational basis for common areas and that each was responsible for their own private areas of the house. The Applicant submitted that he and Mrs Philip could not afford to sell the Toogoom Property and then buy their own houses.
34.Mrs Philip also gave evidence to the Social Services & Child Support Division (T2, paragraphs 28 - 31). Mrs Philip’s evidence was that the relationship deteriorated after the Applicant confessed to her friend that he wanted a relationship with that friend. Mrs Philip explained that that she had not pursued a divorce because the Applicant is a Catholic and he does not believe in divorce. Mrs Philip noted that she would be happy to obtain a divorce. Mrs Philip noted that there was no intention to cease living together as it was financially not affordable to live apart. Mrs Philip noted she did not understand how the purchase of the Toogoom Property was planned as she left financial things to the Applicant. Mrs Philip told the Tribunal that she and the Applicant initially shared her car but that it was uncomfortable for the Applicant who is tall. Mrs Philip explained that the Applicant more or less said she had to sell her car as they needed a more suitable car and they could not afford two cars in the household.
35.On 5 February 2021 the Applicant made an Application for Further Review (T1). In his Application for Further Review the Applicant noted that he tried on many occasions to use the line of credit to purchase a new house. The Applicant contended that when Mrs Philip learned that he was going to use the line of credit for the purpose of purchasing a property she approached the bank without the Applicant’s knowledge and cancelled the facility. The Applicant further contended that he had to stop the purchase of a property in Surat because of this despite his offer being accepted.
36.On 20 May 2021 Mr Michael Tweedie J.P. provided a statement by e-mail which noted that he had observed that the Applicant and Mrs Philip slept in separate beds since approximately mid-2015 (ST9).
37.On 30 June 2021 the Applicant obtained a market appraisal for the Toogoom Property (ST13).
38.On 4 August 2021 the Applicant and Mrs Philip participated in mediation in relation to a dispute over the sale of the Toogoom Property (ST15/14).
39.On 12 August 2021 the Applicant advised that the mediation was unsuccessful (ST16).
Exhibit 1, T Documents, T2, page 9, paragraph 29, Decision of SSCSD and Exhibit 2, Supplementary
T Documents, ST2, page 22, SS293 Form completed by Mrs Philip.
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