Editors --- "Marriage like relationship: whether finding in relation to sexual relationship is required; whether commitment to the relationship compared to other relationships was an irrelevant consideration" [2008] SocSecRpr 34; (2008) 10(2) Social Security Reporter, Article 16

• PELKA v DFHCSIA
• Background
• The issues
• Was a finding regarding any sexual relationship required?
• Comparative assessment of commitment
• Formal decision

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Marriage like relationship: whether finding in relation to sexual relationship is required; whether commitment to the relationship compared to other relationships was an irrelevant consideration

PELKA v DFHCSIA

(Full Court of the Federal Court of Australia)

Decided: 30th May 2006 by Sundberg, Emmett & Siopis JJ

Background

Pelka received carer payments from July 2000 to March 2003. In March 2003 Centrelink determined that she was a member of a couple (with a Mr Kuhl)during this period and so had been paid at an incorrect rate, and an overpayment was raised. This decision was affirmed by the ARO in May 2003, by the SSAT in October 2003, and by the AAT (‘the Tribunal’) in February 2005. In June 2006 the Federal Court set aside the decision and remitted the matter for reconsideration to the Tribunal, which in October 2007 further decided to affirm the decision under review that is, the Tribunal found that Pelka was a member of a couple during the period in question.

Section 4(2)(b) of the of the Social Security Act 1991 (‘the Act’) provides that a person is a ‘member of a couple’ if the conditions set out therein are met. In forming an opinion about a particular relationship, s 4(3) sets out the circumstances of the relationship to which a decision-maker is to have regard, including in particular:

4(3) ...

(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.

Pelka complained to the Federal Court about the way in which the Tribunal dealt with the two considerations contained in paragraphs (d) and (e) of s.4(3) of the Act.

The issues

Pelka submitted that the Tribunal had made errors of law by declining or omitting to make a finding as to whether Pelka and Kuhl had a sexual relationship at a material time, and further by making a comparative assessment of the relationship between them relative to the commitment either had to any other person. Pelka argued, in relation to this second matter, that the Tribunal had made a factual finding without evidentiary basis, that an irrelevant consideration had been taken into account, and that she had been denied procedural fairness.

Was a finding regarding any sexual relationship required?

In relation to the question of whether asexual relationship existed between Pelka and Kuhl, the Federal Court noted that the Tribunal had not been prepared to accept the oral evidence of Pelka and Kuhl, in the absence of corroboration, and had not been prepared to make a finding in this regard ‘...in circumstances where the Tribunal clearly had reservations about the veracity of their evidence’.

The Court noted that s.4(3) does not require a decision maker to make a finding of fact in relation to any of the matters therein specified, but is required to have regard to the matters specified in s.4(3) in forming an opinion about a relationship. However, the Court noted that the obligation to have regard to a matter does not require making a finding of fact about that matter (Davis v Minister for Immigration & Multicultural &Indigenous Affairs (2004) FCA 686 at (34)-(38)). There was no error of law by the Tribunal in failing to make a finding as to whether there was sexual relationship between Pelka and Kuhl.

Comparative assessment of commitment

Pelka contended that, in making a finding that she and Kuhl displayed a special commitment to each other, both physically and emotionally, which was qualitatively different from the commitment that either had to any other person, the Tribunal had considered a matter irrelevant to the opinion that the decision maker must form. In addition, as the evidence before the Tribunal did not canvass the nature of relationships she and Kuhl may have had with other persons, there was no basis on which to make a finding as to the quality of those relationships relative to that between Kuhl and herself, and that by making such a finding without specifically drawing her attention to that possibility, the Tribunal had denied her procedural fairness.

The Court considered the requirements of s.4(3)and concluded that, in relation to the issue of the commitment between two people, that:

The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person. The fact that the commitment that Ms Pelka had to Mr Kuhl was qualitatively different from the commitment that Ms Pelka had to any other person is clearly relevant to the nature of her commitment to Mr Kuhl. (Reasons, para. 30)

Having regard to the evidence before the Tribunal (including the period of their residence together, number of occasions of overseas travel, Pelka being nominated as beneficiary under Kuhl’s will and superannuation, and her description by Kuhl as ‘de facto’ and ‘partner’),and its assessment that their evidence was ‘inconsistent and lacking in candour’, the Court concluded that it was open to the Tribunal to find that neither Pelka nor Kuhl had a similar relationship to another person.

The Court noted that there was some limited evidence presented to the Tribunal regarding other relationships in which Pelka or Kuhl were involved, but that ‘[t]here was an abundance of material before the Tribunal upon which it could base a finding that the commitment that each of Ms Pelka and Mr Kuhl had to the other was qualitatively different from any commitment that either of them had to any other person’ (Reasons, para. 31).The Court also noted that comments in the hearing by the Tribunal made it apparent that it was adopting a comparative approach to the relationship between Pelka and Kuhl, and that this was a fair indication to Pelka that it may make a finding in this regard.

The Court concluded that the Tribunal did not have regard to any material that was not provided by Pelka and Mr Kuhl or was not expressly put to them, and hence that there was no denial of procedural fairness.

Formal decision

The appeal was dismissed.

[P.A.S.]