Tuchowska and Secretary, Department of Employment and Workplace Relations
[2006] AATA 776
•11 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 776
ADMINISTRATIVE APPEALS TRIBUNAL) No Q2005/778
)
GENERAL ADMINISTRATIVE DIVISION )Re ALINA TUCHOWSKA Applicant
And
SECRETARY, DEPARTMENT of EMPLOYMENT and WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date 11 September 2006
Place Brisbane
Decision The Tribunal affirms the decision under review.
.........[Sgd]........
R G Kenny
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – disability support pension – applicant married at relevant time – applicant not living separately and apart from her husband at the relevant time – partnered rate of payment appropriate to applicant – use of the Guide to Social Security – inappropriateness of application of discretion to treat applicant as not being a member of a couple - decision affirmed.
Social Security Act 1991 ss 24, 94, 1064.
Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252
Spencer v Secretary, Department of Family and Community Services (1987) 13 ALD 479
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82REASONS FOR DECISION
11 September 2006 Mr RG Kenny, Member Background
1. Alina Tuchowska (the applicant) and Janusz Tuchowska have been married since 1975. Mrs Tuchowska has been in receipt of social security payments in the form of disability support pension pursuant to the terms of the Social Security Act 1991 (the Act). In 1998, Centrelink, for the respondent, varied the rate of her payments from that applicable to a married person to that applicable to a person who was not living as a member of a couple. The 1998 decision was based on the respondent’s understanding that Mr and Mrs Tuchowska were separated but living under the one roof. On 10 June 2005, Centrelink changed its decision and commenced to make payments to Mrs Tuchowska at the partnered rate. That decision was affirmed by an authorised review officer with Centrelink on 18 August 2005 and by the Social Security Appeals Tribunal (the SSAT) on 14 October 2005. Mrs Tuchowska sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 29 November 2005.
Hearing
2. Mrs Tuchowska attended the hearing. She was not represented. The Secretary was represented by Mr M Belcher. The material before the Tribunal included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Issues and Legislation
3. The qualifications for disability support pension are set out in section 94 of the Act and it is not disputed that Mrs Tuchowska meets those requirements. The rate of disability support pension is worked out in accordance with the terms of the rate calculator A at the end of section 1064 of the Act. Generally, the rate paid to a person with a partner is less than that payable to a person who is not a member of a couple. The criteria for determining whether a person is a member of a couple for the purposes of the Act are differently stated depending upon whether the person is legally married to the other person. It is not disputed that, in this case, Mrs Tuchowska has been married at all material times and, therefore, a member of a couple, in her case, is a person who meets the requirements of paragraph 4(2)(a) of the Act which reads:
“4.(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis.”
4. The component of that provision in dispute in these matters is whether Mr and Mrs Tuchowska were living separately and apart when the Centrelink decision was made. Subsection 4(3) of the Act sets out the criteria for forming an opinion about a person’s relationship. In so far as relevant, it reads:
“4.(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or ………, the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship.”
Background and Contentions
5. Mr and Mrs Tuchowska were born in Poland and came to Australia in June 1984. They purchased land and built a house at Capalaba. They lived there together with their sons, Martin and Stevie, from December 1985 until December 1990. They then moved to Sydney until December 1993. During their time in New South Wales, the house in Capalaba was tenanted and, in September 1993, plans were drawn up for extensions to the Capalaba home. They intended to move back to Brisbane after living in Sydney. However, in December 1993, Mrs Tuchowska and her two sons moved back to Capalaba but Mr Tuchowska moved to Singapore to take up employment which continued until January 1996. During that time, Mr and Mrs Tuchowska communicated by telephone on a weekly basis and, on at least one occasion, Mrs Tuchowska and her sons visited Mr Tuchowska in Singapore. Mr Tuchowska returned to Australia on leave from his work for approximately two weeks in August 1994, in April 1995 and in December 1995. On each of those occasions, he stayed at the Capalaba home with the family.
6. While Mr Tuchowska was in Singapore, Mrs Tuchowska was employed as a nurse. She suffered a workplace injury in May 1995 and, with deterioration of the condition in late 1995, she asked Mr Tuchowska to return to Australia. He returned to the family home in January 1996 and obtained work in the building industry but in a lower paid position than he had enjoyed in Singapore. In March 1998, Mr Tuchowska was injured in a workplace accident and Mrs Tuchowska commenced caretaking activities.
7. Mrs Tuchowska submitted that she and her husband had separated in 1993 when he went to Singapore and had attempted, unsuccessfully, to reconcile in 1996 when Mr Tuchowska returned to Australia. She submitted that she was forced by her Polish background and Catholic religion to allow Mr Tuchowska to remain living in their home and to continue to provide care for him after his 1998 accident. She said that they were not living as man and wife and that, in the event that Mr Tuchowska is successful in his ongoing compensation claim relation to his 1998 injuries, a “granny flat” would be added to the home for him to occupy on an independent basis.
8. Mr Belcher submitted that Mr and Mrs Tuchowska had been married for a long time and had lived under one roof during that time except for periods when they were separated by work commitments or by the need for medical treatment. He submitted that marriages take many different forms and that each was different from each other and internally different over time. He submitted that the quality of a particular marriage was not the issue for whether there was a marriage-like relationship and that one needed to compare a situation before breakdown with that after the breakdown is said to have occurred. He referred to variations in the dates of separation which were given by Mr and Mrs Tuchowska. He submitted that the real change in this marriage occurred in 1998 after Mr Tuchowska’s accident and he acknowledged that, since then, Mrs Tuchowska has undertaken a caring role in relation to her husband. Nevertheless, he submitted that the extent of sharing of finances and household responsibilities by them and the commitment shown by each of them to the other was consistent only with them not living separately and apart under the one roof and the continuation of their marriage. He submitted that the marriage has been one which was able to adjust to the changing circumstances of Mr and Mrs Tuchowska, including those associated with her medical treatment both in Australia and Poland, with Mr Tuchowska’s behavioural changes and his medical treatment and with the interaction with family friends. Mr Belcher submitted that Mr and Mrs Tuchowska’s marriage was a continuing relationship characterised by adaptations to changing circumstances over time.
Consideration
9. Sub-section 4(3) of the Act requires that regard be had to all of the circumstances of the relationship between Mr and Mrs Tuchowska. In Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252, it was stated that the Tribunal is:
“to have regard to the specified criteria in a real sense, i.e. to ensure sufficient and adequate regard is given to all the specified criteria; and to take the criteria specified by the statute into account and to give weight to them as a fundamental element in the decision-making process.”
10. Accordingly, Mrs Tuchowska’s situation with her husband will be considered in respect of their financial circumstances, the nature of their household, the social aspects of their relationship, their sexual relationship and the commitment of each of them to the other.
Financial circumstances
11. Some aspects of Mr and Mrs Tuchowska’s financial arrangements are conducted on an individual basis. For example, they have separate bank accounts. Other aspects reflect a joint approach. They have there own home which they own jointly and which they purchased through a joint mortgage. They discharged their obligations to that mortgage equally until Mr Tuchowska was injured at work in 1998. Since then, Mrs Tuchowska has assumed responsibility for making these payments. Mrs Tuchowska’s evidence was that her husband made little or no contribution to household expenditure and that he spends his own money as he likes. In that situation, he is clearly obtaining financial advantage from their shared living in the same house.
12. When the parties moved from Sydney in 1993, the Capalaba household utilities such as the telephone and insurance of home and contents were in Mrs Tuchowska’s name. That is not surprising as, from the commencement of that period and for the next two years, Mrs Tuchowska lived in the Capalaba home while Mr Tuchowska was living in Singapore. They maintained combined health insurance as recently as 23 February 2005. On that date, Mrs Tuchowska stated in an “Assessment of Living Arrangements” form that she and her husband had a joint credit account with the Commonwealth Bank, a joint store account with GE credit line and a joint personal loan from the Commonwealth Bank. In her evidence, she described this as a mistake; but that information was also contained in another such form completed on 10 February 2005. The personal loan was also referred to by Mr Tuchowska in a similar form dated 10 February 2005. A letter from the Commonwealth Bank, dated 19 March 1996, advised both Mr and Mrs Tuchowska that their loan application, in the amount of $15,000, had been successful.
13. Mrs Tuchowska said that she and her husband purchased various household items such as furniture in their individual names. These provide no assistance in considering the nature of their relationship because some of these related to the period when Mr Tuchowska was working in Singapore and others relate to the period prior to any time when Mrs Tuchowska alleged that she and her husband were separated. For example, a receipt, dated 9 January 1991, from Nick Scali Furniture was in Mr Tuchowska’s name; a receipt, dated 15 March 1992 in relation to other furniture items was in Mrs Tuchowska’s name.
Nature of the household
14. The evidence of Mrs Tuchowska has not been consistent in relation to various aspects of her claim. A range of differing dates have been provided for the time of separation from her husband. These are 26 February 1996 (Living Arrangements forms completed in April 1998); 17 April 1998 (Carer Payment claim form, received by Centrelink in June 2001); 1997 (Carer Payment claim form, dated 17 February 2005); 1987 (Living Arrangements form completed on 23 February 2005); 1997 (Living Arrangements form completed on 1 March 2005); 1987 (letter received by Centrelink in July 2005). Mrs Tuchowska applied for a carer payment in documentation received by Centrelink on 20 June 2001 and in which she nominated 17 April 1998 as the date of separation. She described this as an error as it should have been in 1993 or 1994.
15. Differing evidence was also given as to the nature of the sharing between Mr and Mrs Tuchowska in carrying out household functions. The social worker, Lyn Isbel who reported on arrangements in 1998, was advised that that they cook and eat meals separately. This separation of functions was also described by Mrs Tuchowska in the “Assessment of Living Arrangements” form dated 23 February 2005. That was not consistent with evidence given at the hearing. Their son, Stevie, said that they ate their meals together and all assumed a responsibility for the preparation of meals. Mrs Tuchowska’s oral evidence was that she cooks the meals, that they prefer different types of dishes and that they did not often sit together to eat meals. Mrs Tuchowska described a shared arrangement in relation to cleaning the house with Mr Tuchowska carrying out these duties when she is undertaking classes at the University. She washes all the clothes and he helps in hanging and removing items on or from the clothes line. I am satisfied that there is a significant sharing of responsibilities between Mr and Mrs Tuchowska in the daily functioning of their household.
16. Mrs Tuchowska said that it was difficult to watch television with Mr Tuchowska because he was unable to concentrate and kept changing channels. For that reason, she preferred to watch a separate television set which was in Stevie’s room. Stevie said that the family sometimes watches television together though he conceded that there were some difficulties in watching television with his father. Clearly, the absence of combined television viewing by the family is due to reasons other than breakdown in the relationship between Mr and Mrs Tuchowska.
17. There have been long periods when Mr and Mrs Tuchowska have been separated. In 1994 in 1995, this was because of Mr Tuchowska’s employment in Singapore. However, that separation was consistent with the continuation of the marriage. When periodic leave breaks occurred in Mr Tuchowska’s employment, he returned to the Capalaba home and contributed to the household activities. This was particularly the case at Christmas 1995 when he assumed most of the responsibility for organising household activities because Mrs Tuchowska was unwell. There was also separation during several trips that Mrs Tuchowska undertook to Poland with her son, Stevie, to obtain medical treatment for both of them. She travelled to Poland in May 1996 and returned in May 1997. She was also there in 1999 for about four months; in 2001 for about three months; in 2003 for about two months; and in 2004 for about two months. During the first of those visits, Mr Tuchowska also travelled to Poland. He stayed for three months between June and September 1996. Mrs Tuchowska stayed with her parents and she said that Mr Tuchowska stayed there for some of the time and with his family for some of the time. During his stay in Poland, sharing of activities continued. Mrs Tuchowska kept a diary and her notes show that she and Stevie were looked after by Ms Tuchowska for six to eight hours per day from 22 June 1996 until 18 July 1996. He also did this from 28 July 1996 until 18 August 1996 and for some days in September 1996. After their respective stays in Poland, they returned to the family home in Capalaba. Mrs Tuchowska gave evidence that it was important that they stay together for the sake of the children. Again, I am satisfied that the periods of Mrs Tuchowska’s absence from Australia were consistent with the continuation of her marriage.
Social aspects of the relationship
18. It may well be that the parties never had a significant social relationship. They were willing to be separated for long periods as indicated by the employment option pursued by Mr Tuchowska and by Mrs Tuchowska’s absence in Poland on several occasions for long periods. Of course, on one of those occasions and for a period of approximately three months, Mr Tuchowska joined her and provided significant support for her and their son.
19. There is evidence that social activities were shared through visitations with the Tribilco family from 1986. Margaret Tribilco, in a letter dated 2 March 2006, described visits to each others houses and to a change in those arrangements after Mr Tuchowska’s injury in 1998. She wrote that their relationship became more of a friendship between herself and Mrs Tuchowska.
Sexual relationship
20. There is evidence that there has been an absence of a sexual relationship between Mr and Mrs Tuchowska for some years and that they have occupied separate bedrooms for some years. However, Mrs Tuchowska’s evidence was that she was not able to engage in sexual activity because of her health problems and she also described Mr Tuchowska as a person with whom no one could sleep because of his health problems.
The nature of commitment to each other
21. This aspect of the marriage is the most relevant in this matter because the commitment that they have displayed to each other is very substantial. Mrs Tuchowska referred to this as a cultural commitment. However, whatever the basis is, they have looked after each other’s needs in times of difficulty both in Australia and in Poland. This commitment has continued despite changes in Mr Tuchowska’s behaviour after his accident in 1998. Mrs Tuchowska needed assistance in dealing with Mr Tuchowska in 1998 and, on several occasions, requested that the police attend their property because of Mr Tuchowska’s aggressive behaviour. Police records describe attendances at their property in relation to arguments between Mr Tuchowska and his son. In April 1998, Mrs Tuchowska contemplated divorce and attended the Woman’s Legal Service to inquire about obtaining legal aid to assist her with a divorce application. Also, in May 1998, a protection order was made under the Domestic Violence (Family Protection) Act 1989. It was a consent order and it required Mr Tuchowska to be a good behaviour towards Mrs Tuchowska and their son.
22. Despite those incidents and events in 1998, Mr and Mrs Tuchowska have continued to reside in the same house in the following eight years and they have each continued to provide assistance to the other. Mr Tuchowska is able to care for himself in matters of showering and dressing and Mrs Tuchowska described her main role as monitoring his medication. She accompanies her husband for all of his medical appointments to which they travel either by public transport or by taxi. They have also accompanied each other for medical treatment to Newcastle where Dr Wade King has provided pain management treatment for Mrs Tuchowska since 2000 and for Mr Tuchowska since 2003. Dr King practices in Newcastle and Mr and Mrs Tuchowska travel there from Brisbane for consultations with him. Dr King has seen Mr Tuchowska on six or seven occasions for approximately half a day and he was always accompanied by Mrs Tuchowska. Dr King described his relationship with them as a professional one and considered that, from his observations, Mr and Mrs Tuchowska were not close and he thought that they did not act like a normal husband and wife. He considered that Mr Tuchowska would not be able to undertake the trip to see him without Mrs Tuchowska’s assistance. Mrs Tuchowska said that they usually went together and were away for a few days. They stayed in a motel where they share a room but sleep in separate beds.
23. In her application for a carer payment received by Centrelink on 20 June 2001, Mrs Tuchowska stated that Mr Tuchowska would be living with her “forever”. In another claim for carer payment, dated 17 February 2005, Mrs Tuchowska said that she did not know how long he would be living with her “for sure” but wrote “forever”. In her evidence, she said this was not accurate as she was not able to look after him. However, I do not accept her evidence in that regard. They have stayed together for eight years since the problems in 1998 and the evidence is that this will continue. This is consistent with the entries in “Assessment of Living Arrangements” forms completed, respectively, by Mrs Tuchowska on 23 February 2005 and by Mr Tuchowska 1 March 2005. There, they each stated that they do not have any family disputes.
24. There have also been occasions when Mrs Tuchowska has travelled from Brisbane by herself and, on several of these occasions, she obtained assistance from her husband. Mrs Tuchowska said that Mr Tuchowska would help her if she was unable to obtain help from anyone else. Nevertheless, reference was made to this assistance in various diary entries made by Mrs Tuchowska. She noted that, on 6 February 2001 when she was travelling alone to Newcastle to see Dr King, Mr Tuchowska accompanied her to Roma Street Station to help her with her baggage. On 28 July 2001, she noted that Mr Tuchowska had met her at the station after she had returned to Brisbane by plane. On 22 August 2001, he accompanied Mrs Tuchowska to Central Station and then travelled with her by train to Brisbane airport. On 10 September 2001, Mr Tuchowska again accompanied her to Central Station where she then took the train to Brisbane airport. This does not support a carer role by Mrs Tuchowska towards her husband.
25. The commitment of Mr and Mrs Tuchowska to each other has also been demonstrated by the contact they have maintained during their separations. The evidence of Mr Tuchowska and of Stevie was that Mrs Tuchowska and her children visited Mr Tuchowska in Singapore. They also maintained telephone contact on a regular basis during that period. Additionally, as noted above, Mr Tuchowska visited his wife in Poland and assisted in caring for her and Stevie there.
Summary
26. The relationship of Mr and Mrs Tuchowska is one which is characterised by a significant degree of financial interdependence and by a household in which there is shared responsibility for many household activities and care for their son Stevie. There is no evidence of a strong social dimension to their relationship but the circumstances in the late 1990s is not greatly changed from what it was previously. I am satisfied that they occupy separate bedrooms and that this is entirely consistent with the evidence that their respective health problems would interfere with any sexual relationship. In any event, an absence of such a relationship is but one of the relevant factors to be considered and its absence does not prevent a finding that they are members of a couple under subsection 4(2) of the Act: see Spencer v Secretary, Department of Family and Community Services(1987) 13 ALD 479. The overwhelming feature of their relationship, however, is the strong commitment that each has for the other. This has endured for many years. It has survived periods of separation. It has overcome periods of interpersonal difficulty in 1998 and is likely to last well into the future. I am satisfied that the relationship is not merely one of a carer/caree. I am also satisfied that, having regard to the factors in subsection 4(3) of the Act, Mr and Mrs Tuchowska are not living separately and apart from each other on a permanent or indefinite basis. It follows that they continue to be members of a couple for the purposes of subsection 4(2) of the Act.
27. There is provision in the Act for married persons to be treated as not being members of a couple despite the fact that they are not living separately and apart from the other person on a permanent or indefinite basis. Subsection 24(1) of the Act reads:
“Person may be treated as not being a member of a couple
24.(1) Where:
(a)a person is legally married to another person; and
(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.”
28. The ambit of that discretion to treat a person as not being a member of a couple for a special reason is not set by the Act. However, it is referred to in the Guide to Social Security Law (the Guide) which is published by the respondent. The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines outlined in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409), decision makers may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86. In this case, there is no material before me to indicate that the Guide should not be applied.
29. Paragraph 2.2.5.50 of the Guide provides that, in deciding whether it would be unjust or unreasonable not to apply the section, it is necessary to establish whether either member of the couple is unable to, or cannot reasonably be expected to, benefit from the pooling of resources that usually occurs in a marital relationship. It also provides that there must be some degree to which circumstances are outside the couple's or individual's control and which cannot be changed. The following example is given:
“Example: One partner goes overseas and leaves the partner in Australia with insufficient funds, despite having the means to continue to support his partner.”
30. In this matter, there is no such limitation to Mr and Mrs Tuchowska’s enjoyment of the financial benefit associated with sharing their resources, including their premises, and I am satisfied that there is no basis for the discretion under subsection 24(1) of the Act to be exercised.
Decision
31.The Tribunal affirms the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: B Christoffel
Legal Research Officer
Dates of Hearing 4 August 2006
Date of Decision 11 September 2006
The Applicant was self represented
For the Respondent Mr M Belcher, Departmental Advocate
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