Yamamoto and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1449

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1449

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1326

GENERAL ADMINISTRATIVE DIVISION		)
Re		JULIA YAMAMOTO

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr M A Griffin, Member

Date20 June 2007

PlaceSydney

Decision The decision under review is affirmed.

……....[sgd]..................

Mr M A Griffin
  Member

CATCHWORDS

SOCIAL SECURITY – entitlement - disability support pension - member of a couple not living separately and apart on a permanent or indefinite basis - cohabitation under one roof – factors relevant to assessment of marriage like relationship – financial arrangements – nature of the household – social aspect of the relationship – no sexual relationship – decision under review affirmed

LEGISLATION

Social Security Act 1991 - section 4

REASONS FOR DECISION

20 June 2007 Mr M A Griffin, Member     

1.      This is an application by Mrs Julia Yamamoto for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 29 August 2006. The SSAT affirmed the decision of an Authorised Review Officer (ARO), dated 16 May 2006, which in turn affirmed a decision made by Centrelink on 11 March 2006 to regard Mrs Yamamoto as a member of a couple for social security purposes.

2.      At the hearing of this application on 14 May 2007, Mrs Yamamoto represented herself. Mr Ken Bullock, a Centrelink advocate, represented the Secretary, Department of Employment and Workplace Relations (the Respondent).

3. The Tribunal received into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T23). The Tribunal also received a further written submission from Mrs Yamamoto after the hearing. Mrs Yamamoto and her husband, Mr Keiji Yamamoto, gave oral evidence. There were no other witnesses.

BACKGROUND

4.        This case is about whether or not Mr and Mrs Yamamoto are a couple, or living separately and apart on a permanent or indefinite basis. Mr and Mrs Yamamoto married on 23 May 1975 (T22) and have two adult children. They remain married to each other. Mrs Yamamoto is 61 years of age.  She suffers from a disabling medical condition that restricts her physical independence. Because of this condition, Mrs Yamamoto requires assistance in normal daily activities, is unable to work and has received disability support pension since 1996. In June 2003, Mrs Yamamoto advised Centrelink that she had separated from her husband. Centrelink reviewed her circumstances and, noting that Mrs Yamamoto and her husband were still living together, decided to regard them as members of a couple. This decision resulted in a reduction of Mrs Yamamoto’s social security payment, from the higher single rate of pension to the lower rate applying to a member of a couple.

ISSUE

5.Is Mrs Yamamoto a member of a couple for social security purposes?

EVIDENCE

6.        Mrs Yamamoto said her marriage to Mr Yamamoto broke down in late 1994 or early 1995 when their son finished high school and moved to Adelaide from their home in Port Lincoln. She said that they had experienced problems previously, but that her husband only moved into their son’s bedroom after he relocated to Adelaide. She said, “Since he moved into the other bedroom it ceased to be a marriage because marriage involves sharing a bed and snuggling up together and having a sexual relationship”. According to Mrs Yamamoto, that aspect of their relationship ended in late 1994 or early 1995.

7.        Mrs Yamamoto said she borrowed $5000 for her husband’s business in 1995, and not in 1999 as recorded by the SSAT. She said that there were other debts arising from this business, including large Telstra accounts which totalled some $23,000, and that when the business failed in 1999, she went bankrupt.

8.        Mrs Yamamoto said that her daughter moved to Adelaide after completing school, and that she also moved there to be close to her children. She said that the children found her a 1 bedroom flat in Adelaide, and that she lived in the flat for six to twelve months while trying to sell the Port Lincoln house.  As the real estate agents were having difficulty selling the house, they decided to rent it, and Mr Yamamoto moved to Adelaide to share a 2 bedroom flat with his wife. Mrs Yamamoto said that during this time they continued to occupy separate bedrooms.  The lived in Adelaide for 1 year.  However, they eventually returned to the Port Lincoln house as they were struggling to meet the mortgage repayments. They lived together in the house until it was sold at a loss in 1996. After the sale, Mr and Mrs Yamamoto returned to Adelaide, and lived in a 2 bedroom unit there for 4 years.  

9.        In 2000, Mr and Mrs Yamamoto went to Sydney to see the Olympics. Mrs Yamamoto said that she was too frightened to go alone, and asked her husband to go with her. She said that they decided to move to Sydney after this visit because the employment prospects were better for Mr Yamamoto in Sydney; he is a chef and there were a number of Japanese restaurants in Sydney.  She said, “We discussed it with the children and moved to Sydney so he could obtain work and hopefully we could have a reasonable life”.  Mr and Mrs Yamamoto stayed in a boarding house in Sydney for several months, and then rented a 2 bedroom flat in Hurstville. During this time, their daughter lived with them for six months. They lived at Hurstville for 4 and a half years, and then moved closer to the railway station, where they lived for the next eighteen months. They moved to their current residence near Gosford in April 2006. Again, they have separate bedrooms.

10.      They share the rent for their flat in Gosford. Mrs Yamamoto said, “It is only fair that I should pay my share of the rent … I am 61 years of age and I was brought up that it is the man that pays. We are sharing, and not husband and wife”.  She continued by saying that, “We shop together, but not very often. Normally Mr Yamamoto goes out with a list I make out”. She said, “It would not be fair not to share the budgeting and finance if we are not a couple”. She further stated that, “We have separate bedrooms and share the living room and bathroom”.

11.      On her evidence, Mr and Mrs Yamamoto attend social activities together only three or four times a year. She said, “The kids come and visit us on our birthdays, Christmas, Mother and Father’s day, and maybe two or three times a year apart from that”. She continued by saying that, “We have not presented as a couple, or otherwise, to the real estate agent. If we said we were not a couple they would not rent to us. If we did, we would not get rent assistance from Centrelink”.

12.      Mrs Yamamoto said that she asked her husband to accompany her on a trip to Europe in May last year because no one else could go with her. She paid for the trip from an inheritance. She said Mr Yamamoto did not want to go on the trip. However, he went with her because she could not do it on her own, despite having friends in Europe that she wanted to visit.

13.      Mrs Yamamoto said, “We provide care and support to each other that friends would do for each other”. She also said that Mr Yamamoto has language problems and because of this she talks on the telephone for him. She said:

“Ninety per cent of the reason we stay together is because I cannot cope by myself. It may look like I am using him but he needs my help in many things and I do a lot to help him. We do share the household expenses as I believe that to be fair, if we were a couple I would expect him to pay the expenses…I have two bank accounts, one is for the pension, the other is a saver. He used to use my cash card for the pension account to get money for the food shopping. We have to support each other, there is no one else but our kids and they are in Sydney…If Mr Yamamoto left I would have to go into a home…My feelings for him are for a good friend who helps me a lot. I frankly don’t know what I would do without him but I do not have feelings of a husband for him. He has said many times we would have separated ten years ago and I agree with that”.

14.      In cross-examination, Mrs Yamamoto said the decision to move to Sydney from Adelaide was a family decision which was discussed with the children. She agreed that she does the budget for the household.  She confirmed that her Will (T17) leaves her car, her furniture and half of her money to her husband and that she does not intend to alter those provisions.  She said that the help her husband provided for her in the trip to Europe was “mainly reassurance and emotional support”. She said that they share household expenses, and Mr Yamamoto does the cooking and cleaning. Mrs Yamamoto could not remember them going out to dinner together in Gosford, and that the last time they went out to dinner was 2 years ago.  Previously, it was 2 or 3 times per year. She also said that, “We may go to a show once a year.”

15.      Mr Yamamoto said a wife and husband must have affection for each other, the wife must do the housework and the husband must support her financially. As Mrs Yamamoto can not do anything in the house, and Mr Yamamoto cannot support her financially he said, “I don’t feel like she is my wife. I do the cooking and shopping but don’t like it. We are together mainly because of her health; if not I would just walk away, but I cannot do that. We can live separately, but if together, finances are easier. If I had money or she had money, we would separate, but at moment I just cannot do it”.

16.      Mrs Yamamoto agreed with Mr Yamamoto that if she was not sick, they could separate and would have done so years ago. Mrs Yamamoto said she was once a very active person but is now seventy to eighty per cent reliant upon Mr Yamamoto to help her with daily life. She said she had consulted doctors about Mr Yamamoto’s medical conditions concerning problems with his kidney and hypertension and went with him for his hospital treatment. Mrs Yamamoto said, “Casual friends and acquaintances do not know we are separated …I presume they think we are a married couple”.  Mrs Yamamoto said that they intend to continue living together indefinitely, and that the support she receives from Mr Yamamoto helps her emotionally and gives her “the strength to carry on”.

CONSIDERATION OF THE ISSUES

17. Section 4(2)(a) of the Social Security Act 1991 (the Act) states that a person is considered to be a member of a couple if the person is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis.

18.      Section 4(3) of the Act sets out criteria which must be considered in forming an opinion about such a relationship. The criteria include, but are not limited to:

·The financial aspects of the relationship;

·The nature of the household;

·The social aspects of the relationship;

·Any sexual relationship between the people; and

·The nature of the people’s commitment to each other.

Financial Aspects of the Relationship

19.      Mr and Mrs Yamamoto maintain separate bank accounts. However, Mrs Yamamoto has given Mr Yamamoto access to one of her accounts so that he can withdraw money to pay for the household shopping. Mrs Yamamoto pays for their telephone bill. They share the rent and other expenses, and Mrs Yamamoto maintains a motor vehicle for Mr Yamamoto to transport her. Mrs Yamamoto has previously borrowed money to finance Mr Yamamoto’s business activities and to pay his bills. In 2006, Mrs Yamamoto paid for them to go on a holiday in Europe. Mrs Yamamoto has made Mr Yamamoto the principal beneficiary of her Will. Both Mr and Mrs Yamamoto say that one of the key reasons they continue to live together is for the financial benefits that this cohabitation brings to them. On this evidence, there is a very considerable intermingling of their financial interests.

Nature of the Household

20.      As to the nature of the household, it appears that there is a considerable degree of mutuality. Mr Yamamoto attends to shopping and household chores. Mrs Yamamoto contributes by attending to payment of accounts, business dealings and verbal interaction with other people on behalf of Mr Yamamoto due to his language difficulties.

Social Aspects of the Relationship

21.      It is apparent that casual and business acquaintances, such as real estate agents and friends, form the opinion that Mr and Mrs Yamamoto are a married couple until such time as they are told otherwise. That is, Mr and Mrs Yamamoto present as a couple to the world at large.  Their children are aware of their separate bedroom status, but attend for significant calendar events such as birthdays, Mother and Father’s day and Christmas, and share these with both parents together. From a social perspective, Mr and Mrs Yamamoto appear as a couple.

Sexual Relationship

22.      The evidence is that there is no sexual relationship in the marriage.

Nature of the Commitment

23.      As to their commitment to each other, Mr Yamamoto has said that he would leave his wife but cannot because of his marital obligation, and the fact that she needs his help. He accompanied her to Europe despite his desire not to travel because she needed his help. She says she does not know what she would do without his emotional support and reassurance. She says he gives her the strength to go on. There is no physical or emotional aspect of the relationship in terms of sexual intimacy. However, there is clearly a very considerable commitment from both persons to continued mutual physical and emotional support. The romantic love has gone from this relationship, and also apparently their mutual respect, but the marriage has endured for more than thirty years and a friendship remains. Mrs Yamamoto said that, “My feelings for him are for a good friend who helps me a lot”. 

CONCLUSION

24.      On the evidence, I find that Mr and Mrs Yamamoto are members of a couple and not living separately and apart on a permanent basis.

DECISION

25.      The decision under review is affirmed.

I certify that the preceding 25 paragraphs are a true copy of the reasons for the decision herein of M.A. Griffin

Signed:         
  Associate

Date/s of Hearing  14 May 2007
Date of Decision  20 June 2007
Advocate for the Applicant       Self Represented

Advocate for the Respondent   Mr Ken Bullock