Pala and Secretary, Department of Social Services [2014] AATA 313 (16 May 2014)

Last Updated: 19 May 2014

[2014] AATA 313

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3463
Re	Amrik Pala
	APPLICANT
And	Secretary, Department of Social Services
	RESPONDENT

DECISION

Tribunal	Ms J L Redfern, Senior Member
Date	16 May 2014
Place	Perth

The decision under review is varied. Pursuant to s 24(2) of the Social Security Act 1991 the applicant is not to be treated as a member of a couple for the purposes of the Act during the period 8 April 2012 to 18 August 2012.

...(Sgd) J L Redfern...............
Ms J L Redfern, Senior Member

CATCHWORDS

SOCIAL SECURITY – Whether the applicant was a member of a couple for the purpose of determining the rate of age pension payable – previous findings by Tribunal - whether there had been a change in circumstances - exercise of discretion under s 24(1) of the Social Security Act 1991 not to treat the applicant as a member of a couple where there are extended absences from Australia - decision varied

LEGISLATION

Social Security Act 1991, ss 4(2)(a), 4(3) and 24(1)

CASES

Bogaards v McMahon [1988] FCA 161; (1988) 80 ALR 342

Boscolo v Secretary, Department of Social Security [1999] FCA 106

Comcare and Grimes [1994] FCA 1054; (1994) 50 FCR 60

Lynam v Director-General of Social Security (1983) 52 ALR 128

Martyniak v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5

Pala and Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2009] AATA 664

Pala and Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2010] AATA 1070

Rana and Military Rehabilitation Compensation Commission [2008] AATA 558

Re Pelka v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92

Re Scott and the Commissioner for Superannuation (1986) 9 ALD 491

Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164

REASONS FOR DECISION

Ms J L Redfern, Senior Member

16 May 2014

1. The applicant, Mr Amrik Pala, is a 79 year-old man who has requested review of a decision of the Social Security Appeals Tribunal (SSAT), made on 13 July 2012, affirming a decision that he is a member of a couple and should be paid the partner rate for his age pension.
2. Mr Pala has been married to Mrs Kikuko Pala since 15 April 2002. They have been living together for much of their married life in a house jointly owned by Mr Pala and his daughter in the Perth suburb of Dianella. It is common ground that since their marriage Mrs Pala has lived in Japan for extended periods. Mr Pala has five adult children from his first marriage. He is retired and met Mrs Pala in July 2001. Mrs Pala is a Japanese citizen and has family, including adult children, living in Japan.
3. In August 2007, Mr Pala advised Centrelink that he and Mrs Pala were separated, but living under the one roof, and requested that he be assessed for the age pension at the single rate. After initially making a determination that Mr Pala should not be treated as a member of a couple while Mrs Pala was absent overseas, a delegate of the respondent decided Mr Pala should be paid the pension at the partnered rate on Mrs Pala's return. Centrelink did not accept the contention that Mr and Mrs Pala separated from May 2006 and this has been the subject of ongoing dispute since this time.
4. Mr Pala applied to the SSAT for review of the decision to assess his pension at the partnered rate following Mrs Pala’s return to Australia and this decision was subsequently affirmed on 19 January 2009. He then applied to this Tribunal for review. The decision of the SSAT was affirmed by Deputy President Hotop in Pala and Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2009] AATA 664 (Pala 2009). Mr Pala did not appeal this decision but made a new application to be paid the pension at the single rate in November 2009. His application was rejected and Mr Pala again applied for review to the SSAT. When this application was rejected he lodged an application for review to this Tribunal. Senior Member Walsh decided to affirm the decision of the SSAT and her decision is recorded in Pala and Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2010] AATA 1070 (Pala 2010). In summary, Walsh SM had regard to the Tribunal’s findings of fact in Pala 2009, noted those facts were not contested in the application before her and found there was no significant change in the relationship between Mr and Mrs Pala. She decided that the Tribunal's decision in Pala 2009 was the “correct or preferable one at that time and should not be disturbed”. She further decided that there was no special reason warranting the exercise of discretion to pay Mr Pala his pension at the higher single rate.
5. On 20 September 2011, Mr Pala lodged a third application to be paid his age pension at the single rate. A delegate of the respondent determined that Mr and Mrs Pala continued to be members of a couple and therefore rejected the application. Relevantly, the delegate concluded that there had been no significant change to Mr Pala’s circumstances since the Pala 2010 decision. Mr Pala requested a review but an authorised review officer affirmed the decision on 15 April 2012. Mr Pala lodged an application for review to the SSAT, which affirmed the decision on 13 July 2012. He lodged a further application for review to this Tribunal. The decision of the SSAT was affirmed in Pala and Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2013] AATA 543 (Pala 2013) but on this occasion Mr Pala appealed the decision to the Federal Court of Australia. The respondent conceded that the decision in Pala 2013 was affected by legal error and consented to an order setting aside the decision and remitting the matter for reconsideration.
6. The issues for determination were whether or not Mr Pala was a ‘member of a couple’ for the purposes of assessing the rate of his age pension as at 5 May 2012 and, if so, whether his pension should nonetheless be assessed at the single rate when Mrs Pala was absent from Australia and living in Japan. A further issue that arose was the extent to which I should be “bound” by the previous findings of the Tribunal in respect of the same parties.

STATUTORY FRAMEWORK

7. The relevant legislation in this matter is the Social Security Act 1991 (the Act). Section 43 deals with qualification for the age pension and s 1064 of the Act determines the rate of pension payable. When a person is partnered the rate of pension is less than the single rate of pension. The partner’s income is also taken into account when the rate payable is calculated.
8. The Act provides that a person is partnered, otherwise known as 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 (s 4(2)(a)). Section 4(3) of the Act provides that when determining whether a person is a ‘member of a couple’ all of the circumstances of a relationship must be considered, including the following:

(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 daytoday 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 marriagelike relationship.

9. Section 24(1) gives the respondent discretion to allow payment at the single rate even though the person is a member of a couple and provides as follows:

(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.

BACKGROUND FACTS AND THE EVIDENCE

10. The evidence about the relationship and dealings between Mr and Mrs Pala is not in dispute. It is contained in the documents filed by the respondent, recorded in the various decisions made by authorised review officers of the respondent, the SSAT and this Tribunal and the evidence given by Mr Pala in these proceedings. Mrs Pala did not give evidence.
11. The key issue in contest was the nature of the relationship between Mr and Mrs Pala and whether they remained members of a couple, notwithstanding their somewhat distant relationship, or whether they were separated but living under one roof at the relevant time.
12. Mr Pala originally met Mrs Pala through her daughter while he was studying in Japan. Mrs Pala met up with Mr Pala when he was later travelling in India and then visited him when he returned to Australia in 2001. They married on 15 April 2002. Mr Pala assisted Mrs Pala with her education in Australia. She attempted to find employment but was initially unsuccessful. Mrs Pala returned to Japan to visit her family from time to time but otherwise Mr and Mrs Pala lived together until at least May 2006. According to notes recorded in the Centrelink files, Mrs Pala returned to Japan in May 2006 with the intention to permanently relocate there. She took her possessions with her but on 1 December 2006 decided to return to Australia. She lived with Mr Pala on her return and applied for the Newstart allowance. Mrs Pala recorded that she had a partner in her application and this was subsequently acknowledged by Mr Pala, who returned a Partner Details Form in support of her Newstart application on 11 December 2006, duly completed. Mrs Pala secured employment in December 2006 and paid an allowance to Mr Pala for her living expenses. This allowance was said to represent the shortfall in Mr Pala’s reduced rate of pension.
13. In August 2007, Mr Pala attended at his local Centrelink office and advised that, even though Mrs Pala had returned to live with him in December 2006, he did not consider they were living in a marriage like relationship and they had been separated since 31 May 2006. He requested that he be assessed for the age pension at the single rate. Mr Pala provided information to Centrelink to support his claim but was advised, on 26 September 2007, that he would not be regarded as living separately and apart from Mrs Pala while they continued to reside in the same property. Mr Pala requested a review of this decision. During the period of the review, Mrs Pala left Australia on 2 October 2007 to attend her daughter's wedding in Japan and care for her sick mother. The authorised review officer took this into account, and despite not being satisfied Mr and Mrs Pala were separated, determined Mr Pala should be treated as a single person for the duration of Mrs Pala’s absence overseas pursuant to s 24(1) of the Act.
14. Mr Pala wrote to Centrelink on 6 February 2008 advising Mrs Pala would be returning on 12 February 2008, noting as follows:

So far as I am concerned, there is no question of us going back to living like a married couple. I will keep you informed of the situation and I request you to continue my age pension at single rate.

15. Mrs Pala returned on 12 February 2008 and continued to live with Mr Pala in the Dianella property.
16. There was ongoing communication between the Mr Pala and Centrelink on this issue and on 8 July 2008 Centrelink decided to treat Mr Pala as a member of a couple and paid his age pension at the lower married rate. Centrelink also raised a debt for overpayment of his age pension at the single rate for the period 12 February to 8 July 2008. Mr Pala requested a review of this decision and on 15 December 2008 the authorised review officer determined that the decision to treat Mr Pala as a member of a couple was correct, as was the decision to raise a debt for overpayment of his pension in the sum of $709.13 for the period 12 February 2008 to 20 May 2008. However, the authorised review officer decided to waive recovery of the debt for the period 29 May 2008 to 8 July 2008. Mr Pala applied for review of this decision to the SSAT. He was partially successful in that the whole of the debt was waived but the SSAT otherwise affirmed the decision under review. Mr Pala applied for review to this Tribunal. As already noted, Deputy President Hotop affirmed the decision of the SSAT. That decision was made on 2 September 2009.
17. Within three months of that decision, Mr Pala made another application to Centrelink requesting to be paid at the single rate on the basis of his separation from Mrs Pala. He subsequently sent a letter to Centrelink dated 5 January 2010 in support of his application which included the following:

Here I would like to reiterate that my marriage to Ms Kikuko irretrievably broke up when she first left for Japan with a one-way ticket on 31 May 2006. She has been coming and going whenever it has suited her depending on her family situation in Japan. All this time, my age pension entitlement has been in schemozzle. I did take my case to SSAT and AAT and they acknowledged my situation, but did not decide in my favour. I think their decision was based on technical (legalistic and legislated) considerations and not taking into account the realities of my situation. The simple thing is that for whatever reason, I cannot ‘push out’ Kikuko and she being unemployed, cannot afford to move out.
Living on reduced pension has been very stressful for me all this time and Kikuko’s presence does not help either. My only comfort are my dogs and in spite of stressful situation of living under one roof with Kikuko around, her presence can also be a matter of security in case of emergency as they would be someone to feed and water my dogs.

18. By letter dated 22 January 2010, an authorised review officer advised as follows:

As there has not been a significant change in your circumstances since the Tribunal made the decision on 2 September 2009, I have no jurisdiction to review the decision. Your further rights, as explained by the Tribunal is to take the matter to court.

19. The authorised review officer also considered whether Mr Pala should be paid a higher rate of pension when Mrs Pala was overseas from 6 October 2009 to 16 December 2009. She determined that there was no special reason to pay the higher rate. Mr Pala had $30,000 in the bank and, as such, was not experiencing financial hardship.
20. Mr Pala applied for review to the SSAT, which affirmed the decision of the authorised review officer on 11 March 2010.
21. Mr Pala applied for a review of the decision of the SSAT to this Tribunal but before his application was heard Mr Pala and Mrs Pala applied for consent orders in the Family Court of Western Australia. According to the application made by Mr Pala on 22 July 2010, and supported by Mrs Pala, they separated on 31 May 2006 “due to differences in age, ethnicity and culture” and “problems in marital harmony”. The consent orders were signed by Mr and Mrs Pala on 20 September 2010 and were made by the Family Court before a registrar in Chambers on 24 September 2010. Under the orders, Mr Pala was to pay $20,000 to Mrs Pala “within the timeframe agreed between the parties”. He was to retain his interest in his property at Dianella, each party was to retain their own motor vehicle and it was declared that each party was otherwise to have no further interest in the personal property in the possession of the other.
22. These consent orders were considered by Walsh SM in Pala 2010. She also considered evidence about Mr Pala’s hospitalisation for open heart surgery on 6 October 2010 and the assistance provided by Mrs Pala to Mr Pala, both while Mr Pala was in hospital and during his convalescence at home. Mrs Pala received a carer's payment from Centrelink to assist her to care for Mr Pala during this period. As already noted, Walsh SM decided not to disturb the previous finding of the Tribunal in Pala 2009.
23. Walsh SM decided not to exercise the discretion under s 24(1) in favour of Mr Pala because she was not satisfied, having regard to the circumstances of the case and the relevant authorities, that there was a “special reason” to do so. She affirmed the decision of the SSAT on 23 December 2010.
24. In his third application to have his pension assessed at the higher single rate, Mr Pala did not provide any details about whether there had been a change in circumstance but simply lodged an application dated 20 September 2011 stating he and Mrs Pala were separated and their relationship ended on 29 July 2011. Centrelink notified Mr Pala by letter, dated 5 January 2012, that he and Mrs Pala were still regarded as being members of a couple. He requested a review of this decision and pressed the authorised review officer to make a determination under s 24(1) that he should not be treated as a member of a couple while Mrs Pala was away in Japan. According to the notes of the authorised review officer, Mr Pala told him that Mrs Pala was away for nine months in the previous year and it was very difficult for him to survive on the married rate of the age pension. It was further noted Mrs Pala paid him between $300 and $350 per fortnight while she was living with him but when she goes away she does not pay and this causes severe financial hardship.
25. The authorised review officer determined that Mr Pala was still a member of a couple and declined to exercise the discretion for his pension to be paid at the higher single rate. The SSAT affirmed this decision, essentially because it found that there had been no significant change to Mr Pala's circumstances since Pala 2010.
26. Mr Pala said that he and Mrs Pala had separated on 31 May 2006 and he did not agree with the previous decisions of the SSAT or this Tribunal. Since filing the application for review he had paid Mrs Pala $20,000 pursuant to the Family Court settlement in August 2012 and they had divorced on 7 November 2013. Mrs Pala had moved out of his home on 27 March 2013 and he had lodged a new application to Centrelink claiming the age pension at the single rate from April 2013. There was no evidence about the outcome of this application but it was common ground that this review was confined to the decision of the SSAT made on 13 July 2012 and not supervening events.
27. According to Mr Pala, he and Mrs Pala had grown apart by May 2006. When Mrs Pala decided to return to Japan in May 2006 they had discussed getting a divorce but Mr Pala he was concerned about the stigma of a divorce at that time. Mrs Pala returned in December 2006 but according to Mr Pala they did not resume a marriage-like relationship after this time. When Mrs Pala was living with him at Dianella, they lived separate lives. They did not pool their resources and did not own any assets jointly. Mrs Pala paid living expenses to him every fortnight but Mr Pala otherwise paid the household bills. They sometimes shopped together but he would mostly do the shopping. They cooked their own meals and generally did not eat together. They had separate bedrooms and Mrs Pala had a television and internet connection in her room. Mrs Pala cleaned the house but did not clean Mr Pala’s bedroom and Mr Pala was responsible for maintenance outside. They never went out together and did not have common friends. They did not talk to each other about their children or their problems and did not discuss the future. Mrs Pala never consulted with him when she decided to return to Japan.
28. Mr Pala said Mrs Pala did not request payment of the settlement moneys under the Family Court order made in 2010 because she was happy for him to retain the money until she needed funds. He entered into the consent orders to make a financial settlement with Mrs Pala but also because he had been advised by solicitors at Centrelink that this may evidence a significant change in their arrangements. He decided to pay the settlement money in August 2012. Mrs Pala increased her fortnightly payments to $550 from January 2013. These payments were conceded by the respondent.
29. According to immigration records provided by the respondent, Mrs Pala travelled overseas on eight occasions between 28 April 2002 and 31 October 2005. These travel movements were generally for weeks at a time, rather than months, with the exception of two extended absences from June to September 2003 and October to December 2005. On 31 May 2006, Mrs Pala left Australia and returned on 1 December 2006. She again left Australia on 2 October 2007, returning on 12 February 2008. Mrs Pala lived in Australia until 12 December 2008 but thereafter she travelled overseas regularly, usually for about two or three months at a time, although she remained in Australia during most of 2010. During 2011 and 2012 Mrs Pala was overseas for about five and four months respectively. She left Australia on 27 March 2013 and according to the records had not returned as at 24 February 2014.

CONTENTIONS OF THE PARTIES

30. Mr Pala contended that the previous decisions of the Tribunal were in error. He and Mrs Pala had separated from 31 May 2006 and he only allowed Mrs Pala to return to live with him because she had nowhere else to go. The Tribunal had previously taken a legalistic and technical view about their relationship. He was disadvantaged by this because Mrs Pala did not pay him any money during her extended absences. The Tribunal should set aside the decision and substitute a decision that he be paid the age pension at the single rate from 5 May 2012.
31. The respondent contended that at all relevant times Mr Pala remained a member of a couple. Furthermore there was no special reason for Mr Pala to be assessed at the single rate under s 24(1). While the Tribunal was not bound by findings of fact by previous Tribunals, it was appropriate to consider the evidence before those Tribunals and give greater weight to this evidence. The Tribunal should only depart from the past findings of fact of the Tribunal where there is strong evidence to warrant such departure. There was no evidence that the nature of the relationship between Mr and Mrs Pala had significantly changed from the time of the previous decisions or that there were special reasons for the discretion under s 24(1) to be exercised in his favour. As such the decision of the SSAT should be affirmed.

CONSIDERATION

Previous findings of the Tribunal

32. There have been two previous findings in this Tribunal on the question of whether Mr Pala was a member of a couple at the relevant time. While those findings relate to different periods, the respondent contended there has been no significant change in the nature of the relationship between Mr and Mrs Pala since those Tribunal decisions. I should be persuaded by the findings in Pala 2010, which in turn relies on the findings in Pala 2009.
33. In written submissions on this issue, the respondent referred to the Tribunal's decision in Re Scott and the Commissioner for Superannuation (1986) 9 ALD 491 at 499, where the Tribunal stated:

One effect of the Tribunal's decisions is to establish administrative norms; they enable legislation to be administered consistently. For the Tribunal to make decisions inconsistent with its own previous decisions adversely affects that process. Doubtless, in some cases, were matter has been decided by the Tribunal without full argument or full consideration and it is necessary for the Tribunal later proceedings to examine the matter fully, it may then properly reach a conclusion different from the previous decision.......... Nevertheless, were matter has been decided by the Tribunal after full consideration of competing arguments, the decision is one which is reasonably tenable and there have been no changes to the legislation and no new decisions of the High Court of the Australia or the Federal Court which may be relevant, it seems to us it would be extremely unhelpful for the Tribunal in subsequent proceedings to decide the matter in a manner inconsistent with that decision, particularly when the arguments advanced out substantially the same as those advanced in the previous case.

34. The respondent also referred to the decision of Rana and Military Rehabilitation Compensation Commission [2008] AATA 558 in which Deputy President Forgie gave consideration to the effect of determinations made in previous proceedings involving the same parties. Deputy President Forgie discussed the relevance of the principles of res judicata, estoppel, issue estoppel and Anshun estoppel in proceedings before the Tribunal and observed at [93] as follows:

In light of these authorities, it seems clear that, unlike a judicial decision, the fact that an administrative decision has been made does not necessarily lead to a consideration of whether affects subsequent proceedings by virtue of the application of the principles of res judicata, cause of action estoppel, Anshun estoppel and issue estoppel.

35. Notwithstanding these observations, it is clear that once a decision is made by the Tribunal that decision cannot be subject to further application to the Tribunal and the function of the Tribunal is exhausted (Bogaards v McMahon [1988] FCA 161; (1988) 80 ALR 342). In contrast, where the Tribunal is called on to review a different decision arising from similar facts, the doctrines of res judicata and issue estoppel cannot apply to limit the statutory right of review (Comcare and Grimes [1994] FCA 1054; (1994) 50 FCR 60) but the Tribunal may rely on previous findings of fact by the Tribunal and limit the evidence to be led in the proceedings (Rana).
36. The respondent contended that the Tribunal is not bound by the decisions of Pala 2009 and Pala 2010 “to the extent that it could not consider new evidence that seeks to challenge the findings of fact in those proceedings”. In other words, where there is new evidence that there has been a change in circumstances from the previous decision, it would be open to the Tribunal to determine the matter differently − the inference being, the Tribunal should otherwise be bound by the previous findings. The respondent further submitted that the Tribunal should only depart from previous findings of fact where there is strong evidence to warrant such departure. I note that this was the approach taken by Walsh SM in Pala 2010.
37. Having regard to the authorities about the role of the Tribunal, I have taken into account to the previous findings of the Tribunal but also carefully considered the available evidence, which comprises evidence before the previous Tribunal and new evidence about Mr Pala's circumstances since the previous applications. I am not bound by the previous decisions of the Tribunal but in my view I should nonetheless give these findings considerable weight in determining the questions before me. First, as noted by the respondent, the earlier findings are more contemporaneous and less coloured by subsequent events. They were fully contested and argued. Secondly, I am persuaded by the arguments raised by the Tribunal in Scott that consistency in decision-making is an important factor in the credibility of the Tribunal. As such, I have focussed on the extent to which there has been a change in Mr Pala’s circumstances since Pala 2009 and Pala 2010.

Was Mr Pala a member of a couple at the relevant time?

38. To make decision about whether Mr Pala was a ‘member of a couple’ in the relevant period, the Tribunal must assess the totality of the circumstances surrounding the relationship between Mr Pala and Mrs Pala (Pelk v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546). While the indicia in s 4(3) of the Act must be addressed, they are not exhaustive nor intended to operate like a mechanical checklist. The indicia provide a benchmark for what was considered by the legislature, no doubt by reference to community standards, to be the essence of a “marriage-like” relationship. These factors are objective indicators but ultimately how they are assessed in their totality will be a matter of impression. As stated by Senior Member Creyke in Martyniak v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5 at [64], these are matters of fact and degree.
39. In Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164, O’Loughlin J, when determining whether a husband and wife were ‘living separately and apart’, referred to a list of factors he considered might be relevant based on the statutory indicia in s 4(3) but stated at 170:

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.

40. The factors set out in s 4(3) provide guidance to decision makers in forming a view about whether a relationship is marriage-like. However, in many cases the analysis will be complex and challenging, as are many relationships, and it is useful to draw on the observations of Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131:

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

41. These observations should be taken into account when considering the evidence in the application of s 4(3) of the Act.
42. At the relevant time, Mr and Mrs Pala did not jointly own assets but pooled their resources. Mrs Pala paid Mr Pala an allowance to contribute to her living expenses when she was working and Mr Pala paid for the household expenses. This was the case from the time they first married and there has been no significant change. In 2010 Mr and Mrs Pala entered into a Family Court settlement which involved a promise by Mr Pala to pay Mrs Pala $20,000. Mr Pala subsequently paid the settlement monies to Mrs Pala. This suggests a change in their relationship but is not determinative.
43. Similarly, the nature of the household has not changed significantly over the years. Mr and Mrs Pala have separate bedrooms but share the work around the house. They do not eat or socialise together but this has been the case since at least 2006. While these factors tend to militate against a finding that Mr and Mrs Pala’s relationship is marriage-like, it is not necessarily inconsistent with such a finding. Mr and Mrs Pala have always lived independently and this may be attributable to the fact that they married when they were older. They have not maintained a sexual relationship since 2006 but there is evidence they have maintained a long and continued commitment to each other over the years. Mrs Pala supported Mr Pala when he was recovering after his heart operation during 2010 and she did not require him to pay the Family Court settlement sum for several years. Mr Pala continued to support Mrs Pala in providing her with accommodation whenever she returned from Japan and this was a long-standing arrangement from 2006. They did not divorce until 2013 and in his discussions with the Centrelink authorised review officer in May 2012, Mr Pala is reported to have said that having Mrs Pala residing with him was convenient in that she looked after his two dogs. When asked why he allowed Mrs Pala to continue to live with him in the circumstances, he told the Tribunal that it was hard for her to live anywhere else. It is clear that, despite Mr Pala’s contention he and Mrs Pala were separated from May 2006, he continued to provide support to Mrs Pala and there has been significant mutual reliance and support between them since this time.
44. In Pala 2010, Walsh SM found Mr and Mrs Pala were members of a couple and essentially relied on their level of commitment to each other. Relevantly, she noted as follows at [44]:

A global assessment of the evidence undoubtedly reveals that, since married on 15 April 2002, Mr Pala and Kikuko have derived, and continue to derive, substantial personal benefits from the marriage. Although their relationship, may from an outsider's perspective, not be seen as standard or conventional (for example because they sleep in separate rooms of the house they shared and share no sexual relations) it is plainly mutually beneficial to them: Stanton-Smith. That is, Mr Pala has provided and continues to provide Kikuko with accommodation and security as well as financial and moral support (for example by encouraging and helping her to further her education). On the other hand, Kikuko provides Mr Pala with companionship, assistance around the household and with his dogs and supportive care. They may be separated in the sense that they sleep in separate rooms of the house but this does not equate to them living “separately and apart” from each other “on a permanent or indefinite basis” or amount to a destruction of the consortium vitae: Leonard and Staunton-Smith. The comfort and support they derive from their relationship is based on a combination of domestic, interpersonal and financial co-operation.

45. At the time Mr Pala made his application in September 2011, Mrs Pala had been overseas for several months. It is clear from the interview notes between the authorised review officer and Mr Pala in May 2012 that one of his motivations in applying for the single rate of pension was because at “it was very difficult for him to survive on the married rate of age pension” when Mrs Pala was away.
46. I accept the respondent’s contention that there was little change in the nature of the relationship between Mr and Mrs Pala after Pala 2010. Mrs Pala continued to travel overseas for extended periods and when she returned Mr Pala continued to allow her to live in his home. She contributed to living expenses from her income, assisted him with his dogs, they shared household duties and sometimes shopped together. At some stage, Mr and Mrs Pala’s relationship became more distant because Mrs Pala left Australia on 27 March 2013 and has not returned. According to Mr Pala, and this was not contested by the respondent, they are now divorced. There was no evidence about the circumstances leading to Mrs Pala’s departure from Australia in March 2013 and the subsequent divorce, nor is it relevant to my decision. My role is not to determine whether Mr Pala was member of a couple at this later date. I am reviewing the decision of the SSAT of July 2012, which affirmed the authorised review officer made on 5 May 2012.
47. Having regard to all of the evidence, including the previous findings and the evidence about the nature of Mr and Mrs Pala’s relationship until May 2012, I am of the view that Mr Pala was a member of a couple in the relevant period. While I accept Mrs Pala spent longer periods overseas after December 2010, when she returned Mr and Mrs Pala resumed their previous routine. I am therefore not satisfied there is evidence of a significant change in the relationship between Mr and Mrs Pala during the relevant period to warrant a departure from the findings in Pala 2010 on this matter.

Should the Tribunal make a determination under s 24(1)?

48. Having decided Mr Pala was a member of a couple at the relevant time, the second issue for consideration is whether the discretion under s 24(1) of the Act should nonetheless be exercised in his favour.
49. The exercise of the discretion under s 24(1) was considered by French J in Boscolo v Secretary, Department of Social Security [1999] FCA 106, who observed that the words “special reason” were “in essence instrumental, a direction to the decision maker that the discretion it constrains is not likely to be enlivened”. His Honour further noted, at [18]:

The core of the requirement for “special circumstances” or “special reasons” is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course. But that does not require that the case be extremely unusual, uncommon or exceptional [Case references omitted]

50. As noted by Walsh SM in Pala 2010 at [48] the expression “special reason” must be interpreted in context and consistent with the scope and purpose of the Act. She helpfully set out the context, guidance and authority regarding the exercise of the discretion at [48] − [52] as follows:

48. That context and purpose was explained in the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 (Cth), which relevantly provided (at 17):
“...there is justification in paying a higher rate to an unpartnered person than to a member of a couple if both members of the couple are living together. This justification is based on the premise that the unpartnered person does not enjoy the economies of shared living costs as does the member of a couple in those circumstances. If the economies of scale are not available to the member of the couple because, for example, of the illness of one or both members of the couple, then each would face similar living costs as an unpartnered person.”
49. This justification was expanded in Re Hawkins and Secretary, Department of Social Security (1996) 44 ALD 651 (at 652) as follows:
“The evident policy behind the relevant legislative provision is that ordinarily couples should be expected to pool their resources and practise economies of scale; that those expectations should not apply to couples who are separated by illness or imprisonment; but that there would have to be some special reason not to apply those expectations to members of other couples.”
50. The above extracts indicate two reasons for the “partnered” rate. First, that there are economies of scale in two people living together. Second, because there has been a pooling of resources, the two people are better-off financially because they pool their joint income and assets: Holt applied.
51. Other guidance on how the section 24 discretion should be exercised is provided in Guide 2.2.5.50 of the Guide to Social Security Law (titled “Discretion to Treat a Person as Not Being a Member of a Couple for a Special Reason”) (Guide) offers some assistance in the interpretation of that expression. The Guide provides, among other things, that the discretion should only be exercised where a full consideration of all the circumstances relevant to the individual’s case would make it “unjust or unreasonable” not to do so.
52. According to the Guide, the following three questions should be considered as part of an assessment of the full circumstances of the case: (i) is there a special reason to be considered in this couple’s circumstances?; (ii) is there a lack of being able to pool resources as a result of the circumstances?; and (iii) is there financial difficulty as a result of the couple’s circumstances?

51. In Pala 2010, Mr Pala submitted he suffered from poor health and this should be taken into account. Senior Member Walsh determined not to exercise the discretion because there was “nothing unusual or different” in the particular case of Mr Pala to warrant the exercise of the discretion: at [60]. While she accepted that Mr Pala suffered from poor health due to his heart condition, she noted this was not unusual for someone of his age. She also noted that the relationship between Mr and Mrs Pala was more one of companionship and support and this was not uncommon or unusual as people get older. Mr and Mrs Pala both received social security payments and it was significant that Mrs Pala contributed to the household both through the money she paid Mr Pala and the assistance she gave him in the house.
52. The respondent contended that this reasoning remained relevant as at May 2012 and there was no special reason to exercise the discretion in Mr Pala’s favour given the following:
    • (a) It was not unusual for someone of Mr Pala’s age to have medical expenses;
    • (b) The beneficial nature of the relationship between Mr and Mrs Pala lay mostly in the companionship and emotional support provided;
    • (c) Mrs Pala has been regularly travelling to Japan since 2006 such that her absence and lack of financial contribution should not be considered as an unusual circumstance;
    • (d) Mrs Pala’s absence means that the household expenses incurred during absences reduced and any resulting financial hardship is lessened; and
    • (e) The fact Mrs Pala does not contribute when she is overseas is accepted by Mr Pala, who could have sought payment from her during this period.
53. When this matter was heard by Walsh SM there was evidence Mr Pala had recent heart surgery and Mrs Pala had cared for him during his convalescence. She was contributing to their household expenses and was receiving the carer’s pension at the time. Mrs Pala spent most of 2009 and all of 2010 in Australia. However, after Pala 2010 there was a change in circumstances in respect of which neither the authorised review officer or the SSAT gave sufficient regard. In the 17 month period between the decision in Pala 2010 and the decision of the authorised review officer on 5 May 2012, Mrs Pala lived overseas for approximately 6 months. She was away at the time of the decision and did not return for another 3 months. Mr Pala’s evidence is that Mrs Pala did not consult with him about these trips. Mr Pala did not seek to stop Mrs Pala from leaving, nor did he prevail on her to make a financial contribution while she was away, for reasons that were not explained but nonetheless consistent with the previous pattern of travel and the independent nature of their relationship.
54. In my view, these extended absences, without some financial contribution by Mrs Pala to the household, make Mr Pala’s circumstances “special”. Mr Pala’s uncontradicted evidence was that he had no control over these matters, there was no pooling of resources during this time and there was no assistance in the household. It was therefore unjust and unreasonable for Mr Pala to be assessed as partnered for the purposes of the pension but not have the benefit of pooling and the economies of scale for such an extended period. After Mrs Pala’s return from overseas in February 2008, her subsequent absences until 2011 could properly be described as temporary, being no longer than 2 months and no more frequent that once a year, and therefore not unusual. However, as already noted during 2011 those absences became more frequent and longer. There is no evidence about why this was the case.
55. Given this change in circumstance, I have decided that there is a special reason to assess Mr Pala at the single rate of pension from 8 April 2012 until Mrs Pala returned to Australia on 18 August 2012. Mr Pala was not treated as a member of a couple while Mrs Pala was overseas from October 2007 until February 2008 and received the pension at the single rate. This was previously deemed appropriate by the respondent and I am satisfied it is similarly appropriate in this case.

DECISION

56. I therefore vary the decision under review. I find that Mr Pala was a member at the relevant time but should not be treated as such from 8 April to 18 August 2012 pursuant to s 24(1) of the Act and should be paid the single rate of pension in this period.

I certify that the 56 preceding paragraphs (fifty-six) are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member, Senior Member.

....(Sgd) T Freeman.................................
Associate

Dated 16 May 2014

Date of hearing	19 February 2014
Date submissions received	6 March 2014
Applicant	In person
Representative for the Respondent	Ms A Ladhams Australian Government Solicitor