Winkler and Department of Family and Community Services

[2001] AATA 216

DECISION AND REASONS FOR DECISION [2001] AATA 216

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/521

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      ANDRE WINKLER
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr EK Christie, Member    

Date5 March 2001

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.  This means Mr Winkler's application for review is unsuccessful.            

(Sgd)   EK CHRISTIE
  MEMBER
CATCHWORDS
SOCIAL SECURITY - age pension - whether in a marriage-like relationship - specified criteria for forming an opinion about the relationship.

Social Security Act 1991 ss 4(2), 4(3)
Cocks and Secretary, Department of Family and Community Services [2000] AATA 358
Groth v Secretary, Department of Social Security (1996) 40 ALD 541

REASONS FOR DECISION

5 March 2001         Dr EK Christie, Member                

1. Mr Winkler sought a review of a decision of the Social Security Appeals Tribunal (the "SSAT") made on 10 May 2000 to pay Mr Winkler age pension at the partnered rate as Mr Winkler was considered to be a member of a couple.  The SSAT affirmed the decision of a Centrelink Review Officer made on 24 February 2000.

2. The relevant period for the decision under review was 20 March 2000 to 21 February 2001 when Mr Winkler lived in Germany.

3. The Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 – the "T" Documents (Exhibit 1).

4. Mr Winkler represented himself at the hearing.  The respondent was represented by Mr P Kanowski, a Departmental Advocate.
   Issues before the Tribunal

5. The only issue for the Tribunal to decide was whether Mr Winkler was entitled to receive age pension at the single rate whilst living in Germany with his wife from 20 March 2000 to 21 February 2001.  In turn, this would depend on whether the relationship Mr and Mrs Winkler had in Germany met the criteria in the Social Security Act 1991 for a marriage-like relationship.
   Facts

6. On the basis of the evidence before it, the SSAT made the following findings:

   "(i)On 28 March 1991 Mr Winkler married Ruth Winkler, a German citizen.  It was his second marriage.

   (ii)Mr Winkler owns a duplex property in Australia and Mrs Winkler owns her home in Germany.  There is no joint ownership of real estate or other major assets but Mr and Mrs Winkler share household expenses.

   (iii)While Mr Winkler is living in Germany with his wife they share household tasks.  They do not share a bedroom but share all other facilities.

   (iv)Mr Winkler's repeated returns to Germany demonstrate continued commitment to the marriage.  Mr Winkler provides practical and emotional support to his wife.

   (v)Mr and Mrs Winkler's friends and relatives believe them to be a married couple.

   (vi)Mr Winkler is not contemplating filing for dissolution of the marriage (Document T2 Folios 7 and 8)".

1. Mr Winkler had applied for age pension in 1996 (Document T4, 14 March 1996).
   Contentions and Submissions of the Parties

2. In response to the SSAT findings of fact, Mr Winkler stated:

• that he had married his childhood sweetheart in 1991 in Germany with the clear intention to move to Australia.  However, because of the illness of his wife's elderly parents, his wife would not leave Germany.  Following his wife's parents' death, his wife had not changed her mind.  There was a further problem in that his wife had been treated for a depression-type condition for many years following an accident.  This condition also acted as a further obstacle for her moving to Australia;

• that he had bequeathed his entire estate to his family in Australia.  Furthermore, Mrs Winkler had bequeathed her entire estate to her immediate family in Germany;

• that whilst living in Germany with his wife they shared household tasks like gardening.  He did the odd jobs around the home;

• that because of all the personal health circumstances confronting his wife, including the illness and subsequent death of her wife's parents, he had remained in Germany to comfort and to support his wife.  Because of these obstacles facing his wife he did what any other husband would have done in the same situation - that is, to provide practical and emotional support to his wife;

• that they "lived like married people" with their friends and relatives believing them to be a married couple;

• that his wife was concerned if people may have thought them to be separated; and

• that his wife might commit suicide if he filed to dissolve the marriage. 

1. Mr Winkler described the decision of the SSAT and Centrelink as a grossly unfair and unjust decision.  Mr Winkler said that he had been totally honest with Centrelink at all times but Centrelink had shown no compassion towards him.

2. Mr Kanowski, the Departmental Advocate for the Department of Family and Community Services, submitted that the SSAT approach, in concluding that Mr Winkler was in a marriage-like relationship whilst living in Germany based on its findings of fact (paragraph 5), was the correct interpretation of the law as set out in the Social Security Act.  As a result, Mr Winkler was only entitled to the age pension payable at the partnered rate – not the single rate, while he lived with his wife in Germany.

3. Mr Kanowski further submitted that there was no discretion, under the Social Security Act, to treat Mr Winkler as not being a member of a couple whilst he lived in Germany with his wife.

4. Mr Kanowski submitted that the Social Security Act  provided for certain situations, where a person may not be treated as a member of a couple for a "special reason".  Centrelink Policy Guidelines expanded on this aspect:-

   "It may be appropriate to treat a person in Australia (1.1.A.320) as NOT a member of a couple while the person's partner is overseas.  The primary consideration is whether the partner in Australia is deprived of the income support of the overseas partner (Part 2.2.5.50)".

1. By reference to the following Centrelink File Note (Document T18 Folio 50:

   "REC:   PAYMENT OF SINGLE RATE PENSION WHILE CLIENT IS IN AUSTRALIA AS CLIENT HAS NO ACCESS TO SPOUSE INCOME IN GERMANY (GUIDE 2.2.5.50). 
   WHILE CLIENT IS IN GERMANY THEN HE IS TO BE TREATED AS MARRIED.  CLIENT IS DEPENDENT ON RUTH FOR FINANCE.  (CLIENT'S PENSION PAID INTO BANK ACCOUNT IN AUSTRALIA).  RUTH IS DEPENDENT ON CLIENT FOR CARE AND THERE IS SIGNS OF COMMITMENT TO EACH OTHER WITH CLIENT TRAVELLING TO GERMANY. (GUIDE 2.2.5.10)."

Mr Kanowski submitted that there was no "special reason" to treat Mr Winkler as not being a member of a couple whilst living in Germany.  Mr Winkler pooled his income resources with his wife and so was correctly paid age pension at the partnered rate.
Consideration of the Issues

1. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.  The relevant legislation is the Social Security Act 1991.

2. The first issue for the Tribunal to decide is the honesty and credibility of Mr Winkler as a witness in the evidence that he has given the Tribunal.  The Tribunal finds Mr Winkler to be a truthful and credible witness who has acted honestly and consistently in all his dealings with Centrelink.

3. The next issue for the Tribunal to decide is to apply the facts before the Tribunal to the relevant parts of the Social Security Act.  Section 4 and Section 24 are the appropriate parts for the Tribunal to consider.

4. A person is a member of a couple for the purposes of the Social Security Act if that person meets the requirements of subsection 4(2) of the Act.  In Mr Winkler's circumstances, subsection 4(2)(a) is relevant.

   "Member of a couple – general

   4(2)     Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
   (a)       the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
   …."

1. Subsection 4(3) of the Act sets out the matters to be considered when forming an opinion as to whether a person is in a marriage-like relationship.

   "4(3)    In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
   (a)       the financial aspects of the relationship, including:

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

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

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

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

   (b)       the nature of the household, including:

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

   (ii)       the living arrangements of the people; and

   (iii)      the basis on which responsibility for housework is distributed;
   (c)       the social aspects of the relationship, including:

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

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

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

   (d)       any sexual relationship between the people;
   (e)       the nature of the people's commitment to each other, including:

   (i)        the length of the relationship; and

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

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

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

1. In carefully assessing all of the facts before the Tribunal and applying them to the criteria specified in the Social Security Act as to what constitutes a "marriage-like relationship", the Tribunal concludes that during the period 20 March 2000 to 21 February 2001, Mr and Mrs Winkler were in a marriage-like relationship because of:

• the "financial aspects of their relationship" in that they pooled financial resources, each contributing in some way to the sharing of daily household expenses.  Mr Winkler provided his contribution after returning to Australia;

• the "nature of their household" in that, whilst living in the same house, they shared jobs and tasks around the home;

• the "social aspects of their relationship" as, for reasons given by Mr Winkler, they had little option other than to hold themselves out to their friends as being "everything like a normal marriage"; and

• the "nature of their commitment to each other" as one of a mutually supportive relationship helping each other.

1. This finding means that Mr Winkler, whilst living in Germany with his wife, was only entitled to the age pension at the partnered rate – not the single rate.

2. A further Section of the Social Security Act needs to be considered in deciding Mr Winkler's application for review.  Under subsection 24(1) of the Act a person may be treated as not being a member of a couple in some circumstances.  Subsection 24(1) provides as follows:

   "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."

1. In applying this Section of the Social Security Act to Mr Winkler's situation, the Tribunal must give weight to its finding in paragraph 19 that the "financial aspects of their relationship" was such that Mr and Mrs Winkler pooled their financial resources.  In addition, in applying the Policy Guideline (see paragraph 11), the primary consideration under Section 24 is whether Mr Winkler was deprived of the income support from his wife whilst living in Germany.  The Tribunal concludes that whilst living in Germany, Mr Winkler was not deprived of income support from his wife.  However, this situation did not occur for Mr Winkler when he lives in Australia.

2. Consequently, the Tribunal finds that there is no "special reason" why Mr Winkler should be treated as not being a member of a couple whilst he lived in Germany from 20 March 2000 to 21 February 2001.  Whilst this finding may seem harsh, it would be more correct to say that it is unfortunate.  From a study of decided cases by the Tribunal, e.g. Cocks and Secretary, Department of Family and Community Services [2000] AATA 358, the Tribunal has no other option but to apply the facts to the law and to make the conclusions it has made. The Tribunal understands the obstacles Mrs Winkler would need to overcome (paragraph 8) to move to Australia. However, the legislation and the Policy Guidelines give the Tribunal no alternative but to decide Mr Winkler's application for review in the way that it has.

3. In Groth v Secretary, Department of Social Security (1996) 40 ALD 541, the Federal Court considered whether a person's circumstances were "special".  The approach taken by the Federal Court in considering the meaning of "special" was that a person's circumstances may be "special" if the effect of the legislation on the person concerned were different from that which would be felt by others.  The Tribunal concludes that, in finding Mr Winkler was in a marriage-like relationship whilst living in Germany, the facts of Mr Winkler's case have been decided in the same way as for any other person in a similar fact situation – see Cocks and Secretary, Department of Family and Community Services.

4. The Tribunal makes the observation that the findings made in relation to the period Mr Winkler lived in Germany with his wife, do not apply now that he has returned to Australia.  Living in Australia, Mr Winkler receives no income support, whatsoever, from his wife.  Mr Winkler is not in a "marriage-like relationship" with his wife whilst living in Australia and so should be entitled to receive the age pension at the single rate.

5. For all of the above reasons, the decision under review is affirmed.  This means Mr Winkler's application for review is unsuccessful.

   I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

   Signed:         Emma Oettinger
     Associate

   Date/s of Hearing  5.3.01
   Date of Decision  5.3.01
   Rep. for the Applicant              Applicant appeared in person
   Solicitor for the Respondent    Mr P Kanowski, Departmental Advocate