Poulos and Repatriation Commission

[2000] AATA 234

CATCHWORDS – VETERANS' AFFAIRS – pensions – applicant carer of extremely ill wife – whether applicant entitled to be paid as if he was living separately and apart from his wife – decision affirmed.

Administrative Appeals Tribunal Act 1975 – s34B, 37,
Veterans' Entitlements Act 1986 – ss 1, 5E, 5Q, 5R, 11A, 41,

Re Tang and Director-General of Social Services (1981) 3 ALN N83
Staunton-Smith v Secretary, Department of Social Security (1991) 14 AAR 325; (1991) 32 FCR 164; (1991) 25 ALD 27

DECISION AND REASONS FOR DECISION [2000] AATA 234

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/285
VETERANS' APPEALS DIVISION  )

Re                 PETER POULOS

Applicant

And                REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Miss S A Forgie (Deputy President)

Date  24 March, 2000

Place  Brisbane

DecisionThe Tribunal affirms the decision of a delegate of the respondent dated 9 December, 1998 and affirmed by a decision of another delegate dated 8 February, 1999.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 17 February, 1999, the applicant, Mr Peter Poulos, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") dated 8 February, 1999. That delegate had affirmed an earlier decision made by another delegate on 9 December, 1998. In that decision, the delegate had determined that Mr Poulos and his late wife were living together in a marriage-like relationship within the meaning of s. 11A of the Veterans' Entitlements Act 1986 ("VE Act").  That determination was made for the purposes of assessing the rate of service pension to which Mr and Mr Poulos were entitled.

1. Mr Poulos' application had first been listed for hearing at Cairns in October, 1999 but was vacated as Mrs Poulos was in hospital.  As Mr Poulos did not wish to proceed at that time, the application was adjourned.  It was re-listed for hearing in Cairns in February, 2000.  Mr Poulos wrote to the Tribunal on 18 December, 1999 to advise that his wife had died on 3 December, 1999.  He also wrote that the Tribunal could proceed without him as he had enough stress at present.  Mr Stoner, who represented the Commission, agreed that the matter could proceed on the papers and made submissions dated 22 February, 2000.  He sent a copy of those submissions to Mr Poulos.

1. Although s. 34B of the Administrative Appeals Tribunal Act 1975 ("AAT Act") gives the Tribunal the power to review a decision on the papers and without holding a hearing, it is not every case in which it is appropriate to exercise that power. As s. 34B provides, the parties must, as in this case, consent to the matter being determined in that way.  The Tribunal must also be satisfied that the issues for determination can be adequately determined in the absence of the parties (s. 34B(a)). 

1. Generally, a case which raises an issue such as the relationship of two people is not a case well suited to determination on the papers.  In so far as the nature of a relationship can only be explored by a person outside that relationship, it generally requires an oral exchange with the people involved in that relationship.  Such an exchange is necessary to understand its intricacies let alone its nuances.  The written word is often inadequate to express such things and, in addressing some aspects, often raises questions for which there is no ready opportunity to find an answer. 

1. Ideally, I would have liked to talk to Mr Poulos in this case.  I must, however, bear in mind that Mr Poulos has suffered the loss of his wife and feels that he has enough stress at the moment.  To discuss his relationship with his late wife at this stage could only add to his stress.  In view of that, and only in view of that, I have decided to consider Mr Poulos' application on the papers.

1. The papers I have are Mr Poulos' application, the documents lodged pursuant to s. 37 of the AAT Act ("T documents"), a certificate from Dr Charles McCaldin, a letter from Mr Poulos dated 25 March, 1999, a letter from Mr Poulos dated 1 April, 1999 to which is attached a copy of an article by Adrian McGregor entitled "Patriotism can be a dirty word" and a copy of the submissions by Mr Stoner.

THE ISSUE

1. The issue in this case is whether Mr and Mrs Poulos were living separately and apart from each other on a permanent basis in the period from 3 November, 1998 until 3 December, 1999.

BACKGROUND

1. I find that Mr and Mrs Poulos were married on 21 March, 1944. On 1 November, 1980, Mr Poulos was granted a service pension and Mrs Poulos was granted a partner service pension. Each was paid pension at the married rate. The rates of those pensions were calculated pursuant to s. 41 of the VE Act. That section provided that they were to be calculated pursuant to the Rate Calculator which is found in Part 2 of Schedule 6 of the VE Act (s. 5Q(1)).  In calculating their pensions, it was relevant to consider whether or not they were a member of a couple.  This was relevant, for example, in determining the maximum basic rate of their pensions (points SCH6-A1, Step 1 and SCH6-B1) and in determining their income and assets (point SCH6-A2).

1. The expression "member of a couple" is defined in ss. 5E(2), (3) and (4).  In so far as the elements of the definition are relevant in this case, they are:

"(2)     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 living separately and apart from the other person on a permanent basis; or

(b)all of the following conditions are met:

(i)the person is living 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 person and the partner are, in the Commission's opinion (formed as mentioned in section 11A), in a marriage-like relationship;

(iv)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

(3)…

(4)A person is not a member of a couple if a determination under subsection 5R(3) is in force in relation to the person.

Note:subsection 5R(3) allows the Commission to treat a person who is a member of a couple as not being a member of a couple in special circumstances."

1. Section 5R provides that, in certain circumstances, the Commission may determine that persons who are otherwise members of a couple are not members of a couple for the purposes of the Act.  Sub-sections 5R(3), (4) and (5) provide:

"(3)     The Commission may determine, for any special reason, that a person who is a member of a couple is not to be treated as a member of a couple for the purposes of this Act.

(4)The determination must be in writing.

Illness separated couple determination

(5)If the Commission is satisfied that:

(a)2 people are members of a couple; and

(b)they are unable to live together in a matrimonial home as a result of the illness or infirmity of either or both of them; and

(c)because of that inability to live together, their living expenses are, or likely to be greater than they would otherwise be; and

(d)that inability is likely to continue indefinitely;

the Commission may make a written determination that the 2 people are members of an illness separated couple for the purposes of this Act."

1. Mrs Poulos began to live in a nursing home in 1996.  In view of that, the Commission determined that Mr and Mrs Poulos were an illness separated couple.  Consequently, from 11 April, 1996, they were paid service pension and partner pension at the single rate.

1. On 21 September, 1998, Mr Poulos advised the Department of Veterans' Affairs ("Department") that he and his wife had begun to live together in private accommodation since August, 1998.  He asked that they again be paid their pensions at the married rate (T documents, page E).  The Commission began to pay them at the married rate from 8 October, 1998.

1. On 3 November, 1998, Mr Poulos asked the Commission to regard him and his wife as being separated while living under the same roof (T documents, page 7).  He was sent a questionnaire headed "Questionnaire Living under the Same Roof" (T documents, pages 1-6).  Mr Poulos completed that questionnaire and returned it to the Department on 13 November, 1998.

1. On 9 December, 1998, a delegate of the Commission decided that Mr and Mrs Poulos were members of a couple (T documents, page 7). The delegate decided that Mr and Mrs Poulos met the criteria set out in s. 11A of the VE Act. That section provides that:

"In forming an opinion for the purposes of this Act whether 2 people are living together in a marriage-like relationship, regard is to be had to all the circumstances of the relationship including, in particular, the following matters:

(a)the financial aspects of the relationship, including:

(i)any joint ownership of real estate or other major assets and any joint liabilities; and

(ii)any significant pooling of financial resources especially in relation to major financial commitments; and

(iii)any legal obligations owed by one person in respect of the other person; and

(iv)the basis of any sharing of day-to- day household expenses;

(b)the nature of the household, including:

(i)any joint responsibility for providing care or support of children; and

(ii)the living arrangements of the people; and

(iii)the basis on which responsibility for housework is distributed;

(c)the social aspects of the relationship, including:

(i)whether the people hold themselves out as married to each other; and

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)the basis on which the people make plans for, or engage in, joint social activities;

(d)any sexual relationship between the people;

(e)the nature of the people's commitment to each other, including:

(i)the length of the relationship; and

(ii)the nature of any companionship and emotional support that the people provide to each other; and

(iii)whether the people consider that the relationship is likely to continue indefinitely; and

(iv)whether the people see their relationship as a marriage-like relationship." 

The decision was affirmed by another delegate on 8 February, 1999.

THE EVIDENCE

1. In the questionnaire, Mr Poulos stated that he and his wife were not living as husband and wife.  When asked whether they were regarded as husband and wife by family, friends and the local community, Mr Poulos wrote "Still Mum & Dad" (T documents, page 1).  His relationship started on 21 March, 1944 and he answered "yes" when asked whether his relationship was permanent.  On "very rare" occasions, they went out to social functions together and relatives, friends and associates did not invite the two of them as a couple.  When asked "In what way, if any, have you tried to dispel any impression held by your relatives, friends and regular associates that the two of you are not a couple?",  Mr Poulos replied "I stay because of her ill health." (T documents, page 2)  He continued to live in the same place as Mrs Poulos and did not have any intention of moving away from home.

1. They shared a bathroom and living room in the house they rented.  When asked if their home had been altered structurally since living together, Mr Poulos replied: "Awaiting extra for bathroom" (T documents, page 3).  He said that they had separate self-contained accommodation.  Mr Poulos attended to all official letters arriving at their house, paid for food, groceries and the like and paid for regular household expenses including electricity, gas and telephone.  He said that they had one joint bank account with a balance of $100.00.  They did not own property in joint names and did not have any life insurance policies.

1. Mr Poulos wrote "no" when asked whether they each did their own cooking, washing, ironing and housework.  They did not watch television together.  At question 24, Mr Poulos was asked about the extent to which each of them provided care, support or help for the other when faced with illness, personal crisis, money problems or family disputes.  Addressing each heading, Mr Poulos replied "I am a carer.  Worry over wife illness.  Have to watch our spending. Very rare." (T documents, page 5)  The questionnaire also asked Mr Poulos about the way in which his relationship would change if they were to marry.  Mr Poulos wrote: "Cannot marry as illness keeps me around to look after her." (T documents, page 5)

1. On 25 March, 1999, Mr Poulos sent the Tribunal a certificate from Dr McCaldin.  The certificate stated that Mrs Poulos had severe COAD/bronchiectasis which was the result of reflux inhalation.  Her condition required regular nebuliser therapy.

1. On 1 April, 1999, Mr Poulos wrote to the Tribunal:

"I personally invite any member of the Appeals to spend 24 hours with my wife, and I shall have a day off after 6 months 24 hours a day for 2 bob (20 cents).

I am fed up with everything.  … . Well when I was in the desert it was sand. In Darwin it was bombs (60) raids then in the mud of New Guinea for 12 mths.

I am enclosing a paper out of the Courier Mail if this shows what would have happened if the Japs had landed. My time was 5 ½ year in the AIF and there was no rules except stay alive and fight for Australia."

1. In a letter received by the Department on 16 October, 1999, Mr Poulos wrote:

"There is no feeling between my wife and self we have been married 35 yr come March 21. But illness such as 14 weeks in hospital with a cancer operation then followed up with Hiatus Hernia followed by Parkinson disease. Previous to all this my wife was a schizophrenic for 30 yrs.

Now I have to do everything since we left the home. She was so depressed she caused me a lot of worry then she asked to buy her out of the home.

We are in a two bedroom flat before we always slept in twin beds after our youngest son now 37 was born so there was no such thing as sex.

She is a good woman never drank never smoked we had 5 children 3 girls 2 boys lost one girl who was murded (sic) in Townsville. We have 15 grandchildren 11 great; Grand But we cannot have a conversation because the limit of her speaking is about one minute then she began to cough and bring up fluid I have to wash cook shop and house clean. She is now 81 years old; I consider my life is tied up as a carer and nothing else. (T documents, page 17)

Mr Poulos had written comments next to a copy of the criteria set out in s. 11A of the VE Act. They mirrored his earlier comments but he said that they held themselves out as a married couple "in name only".  He said that "nil" companionship and support was offered by one to the other.  Finally, he said that his wife was "… on 7 prescriptions.  This also cost money." (T documents, page 13)

1. In his application, Mr Poulos wrote:

"I hereby appeal against your decision on the grounds that my Evidence has been passed over.

You mention Mrs Poulos has Parkinson Disease, but you overlook the last bit of my claim. She had 14 weeks in Hospital with Cancer, then followed up by Hiatus Hernia then the last was Parkinson. Also I sent a copy of my Carers Card. And I am on Duty 24 hrs a day for which I receive (2 bob) 20 cents a day for a full 24 hrs." (T documents, page C)

CONSIDERATION

1. The delegates made their decisions, and Mr Stoner has made his submissions, on the basis that the issue in this case is whether Mr and Mrs Poulos were in a marriage-like relationship.  That would have been the issue had they not been legally married to each other and a determination had to be made as to whether they were a member of a couple within the meaning of paragraph (b) of the definition of that expression.  They are, however, legally married to each other and so the issue becomes whether they were, at the relevant times, living separately and apart from each other on a permanent basis.  That arises from paragraph (a) of the definition and it is that paragraph to which regard must be had when two people are legally married.

1. The distinction was recognised in Staunton-Smith v Secretary, Department of Social Security (1991) 14 AAR 325. O'Loughlin J said that it is:

"… possible that, in a given situation, the facts that would establish that a man and a woman are not living separately and apart would also establish that they are living together as man and wife on a bona fide domestic basis.  Nevertheless, the terms are not interchangeable." (page 328)

1. O'Loughlin J went on to consider the factors which had been set out by the Tribunal in the earlier case of Re Tang and Director-General of Social Services (1981) 3 ALN N83 in considering whether a woman was living with a man as his wife on a bona fide domestic basis although not legally married to him.  His Honour continued:

"As the test to be applied in this case in whether Mrs Staunton-Smith was living separately and apart from Mr Staunton-Smith, I would prefer to have regard to the subject matters that were mentioned in Tang's case, but to recast them in the following fashion:

(1)What are the living, eating and sleeping arrangements in the household between the applicant and the other party?

(2)Do the applicant and the other party have a sexual relationship?

(3)Do the applicant and the other party have a social relationship?

(4)What third parties (particularly children) are residing in the house and what is the relationship between each third party and the applicant and the other party?

(5)What are the financial arrangements between the applicant and the other party? For example, are resources within the household pooled and household expenses shared?

(6)Do the applicant and the other party hold themselves out as living separately and apart?

(7)Do the applicant and the other party have a genuine belief that they are living separately and apart?

(8)Does the existing relationship give rise to any moral, social or legal rights between the applicant and the other party?

(9)Finally, what is the relationship between the applicant and the other party and does it contain any degree of permanence?

It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based." (page 331)

1. I find that Mr and Mrs Poulos were married for 55 years.  It was a long marriage which produced five children.  For the last 37 years of the marriage and after their younger son was born, there were no sexual relations between them.  They continued to live together in the same house but there is no evidence of the nature of their relationship over most of the 55 years of their marriage.

1. On the basis of the evidence of Mr Poulos, I find that Mrs Poulos has been ill for quite some years.  She was ill in 1996 and, from at least April, 1996 until August, 1998, she lived in a nursing home.  During this time, Mr and Mrs Poulos were regarded as an illness separated couple by the Commission. 

1. I find that in September, 1998, Mr Poulos advised the Commission that he and his wife were "again living together in private accommodation" (T documents, page E).  He asked that they be paid their pensions at the married rate.

1. I find that Mrs Poulos was seriously ill.  This is supported by her doctor's certificate and also by Mr Poulos' own evidence.  She suffered from Parkinson's Disease and depression and had undergone operations for cancer and an hiatus hernia.  I find that Mr Poulos cared for her in every way.  When she became depressed in the nursing home in 1998, he took her home and cared for her.  He looked after their financial obligations by using the income they received from their pensions.  He cared for her personal needs and was on call for 24 hours each day.  Mrs Poulos' conversations with him were limited by her condition which made her cough if she spoke.  His wife's condition caused him grave worry.  Despite the demands upon him, Mr Poulos could still appreciate his wife's fine qualities but, by November, 1998, he was a man who had become worn out with worry and caring.  On the basis of the comments he made about money, I find that the cost of maintaining his wife at home and he cost of her medications was becoming prohibitive for him.  His request that he and his wife not be regarded as members of a couple was an appeal for financial help and for respite as much as anything else.

1. Having regard to all of the evidence, I find that Mr Poulos felt that he was living in a marriage that was a marriage in name only.  He had lost the companionship of his wife and he was simply a carer who bore the financial and emotional worries of caring for her as well as performing the many physical tasks required of a person in such a situation.  Does that mean that they were living separately and apart on a permanent basis?  I do not think that it does.  While the precise nature of their relationship might have changed and while their respective roles in that relationship might have changed, they remained two people whose lives were inextricably interlinked.  They were interlinked both by their physical proximity in the same flat and by Mr Poulos' caring for Mrs Poulos.  They were interlinked emotionally even if only in the sense that Mrs Poulos was completely dependent upon Mr Poulos.  They could not be said to have been living separately and apart from each other in such circumstances.

1. It follows that I find that Mr and Mrs Poulos were, as at 8 February, 1999, members of a couple within the meaning of the VE Act. As such they were entitled to be paid service pension and partner pension at the married rate. For the reasons I have given, I affirm the decision of a delegate of the respondent dated 9 December, 1998 and affirmed by a decision of another delegate dated 8 February, 1999.

   I certify that the thirty one preceding paragraphs are a true copy of the reasons for the decision herein of 

   Signed:         .......................................
     M Martinez    Associate

   Date of Hearing       Decided on the Papers
   Date of Decision       24 March, 2000
   Applicant  Self
   Advocate for the Respondent      Mr J Stoner