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Social Security Reporter |
Widow allowance overpayment: legally married; living separately and apart
(2010/671)
Decided: 3rd September 2010 by B. J. McCabe
Bada was receiving widow allowance and in 2007 met her future husband online. Her evidence was that she and her husband ‘provide[d] companionship and emotional support to each other via phone calls, text messages, emails and internet chat’. As their relationship pro-gressed, they discussed the possibility of Mr Bada moving to Australia. He under-took a number of educational courses to assist him in his application for a visa.
Bada travelled to Nigeria on 23 September 2009 and met Mr Bada for the first time. She maintained she did not travel to Nigeria with the intention of marrying, although the AAT was satisfied that she at least considered that was a possibility. She said she intentionally left her important documents behind in Australia so she would not make a hasty decision. She wanted to meet Mr Bada in person before making any decisions about the future.
Bada decided she wanted to marry and arranged for her documents to be collected from Australia. The couple contacted the local authorities in Nigeria and made the arrangements and she extended her trip for two weeks so she could marry Mr Bada. The ceremony was attended by his family and friends on 9 October 2009. Bada left the country alone the following day and had not seen her husband in person since then as he was waiting for his visa to be approved. That had occurred and his arrival was imminent.
Bada did not inform Centrelink of her travel plans in 2009 before she departed. She maintained that she reported her marriage to a Centrelink officer in the course of a telephone call to Centrelink on 13 October 2009. However there was no record that she notified of a change in her marital status. The Department contended that Bada did not disclose the marriage until 14 December 2009.
Centrelink made a decision that Bada was not entitled to receive widow allowance after she was married and she was paid $2695.03 between 9 October 2009 and 23 December 2009 that she was not entitled to receive.
Section 408BA of the Social Security Act 1991 (the Act) says a person is not eligible to be paid widow allowance if, amongst other things, she is a member of a couple. That expression is defined in s.4. Section 4(2) states:
...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...living separ-ately and apart from the other person on a permanent or indefinite basis...
There was no dispute that Bada and her husband were legally married to each oth-er. The issue was whether they could be said to be living separately and apart... on a permanent or indefinite basis during the period under review. That question must be considered with reference to all of the circumstances of the relationship at the time and the decision-maker must have particular regard to the indi-cia of a relationship set out in s.4(3).
Bada maintained there was no financial relationship between her and her new husband at the relevant time. They did not hold joint accounts or joint assets or share any liabilities. They did not pool their assets or income. There were no shared household expenses or any legal obligations owed to each other. Bada paid the cost of her husband’s visa ap-plication but did not otherwise give him any money or provide any finan-cial assistance. While she agreed to pay his cost of travelling to Australia, Bada said that she consciously decided not to make any other money available to him.
Bada and her husband had never shared a home. There were no children of the relationship.
Bada said she accompanied her new husband to a few social events while she was in Nigeria but they had limited opportunities for interaction or to participate in joint social activities. She and her husband presented as members of a couple and she had taken her husband’s name. Her close friends and relatives described her as being married. She conceded her daughter did not appear to accept the relationship, and she made comments about the attitudes of her father and brother which suggested they had some difficulty with the authenticity of the relationship.
The AAT noted that she presented as a person who was keen to demonstrate that the relationship was genuine, even though it did not necessarily serve her interests to communicate that view. There was some doubt that her view of the relationship was shared by all of her family and friends.
Bada agreed she and her husband had commenced a sexual relationship when they met but that relationship was interrupted when she left the country.
Bada said that she saw the marriage as a genuine, long-term relationship. Correspondence from Mr Bada prepared for his visa application also demonstrated the commitment of the parties to each other and the genuineness of the relationship. The relationship had persisted for several years although mostly the only contact had occurred over the internet and telephone. Bada spoke of the companionship and support they provided to each other.
The AAT accepted the parties’ commitment to each other had firmed more recently once the husband’s visa had been approved and considered that before the visa was approved – and during the period under review – the commitment to each other was qualified. In the event that the husband’s visa had not been approved, Bada’s evidence was that she did not know what she would have done, although she would not have agreed to live in Nigeria which was the only practical alternative. Bada accepted her father’s advice that she should enter into a financial agreement with her new husband that would protect her position in the event the marriage did not last. The AAT considered that while entering into a financial agreement did not of itself suggest a want of commitment, the evidence suggested Bada was hedging her bets in the period under review.
The AAT concluded that Bada and her husband were not members of a couple during the relevant period. Although they intended her husband would come to live with Bada in Australia if his visa was approved, that prospect remained distant and uncertain when they married. While they took on some of the external appearance of being married, the two individuals had done nothing more than make a firm promise to commence a marriage-like relationship at some point in the future if everything turned out. In the circumstances, the AAT was satisfied that Bada and her husband were living separately and apart on an indefinite basis at the relevant time.
The decision under review was set aside and substituted by the decision that Bada was not a member of a couple at the relevant time, and was therefore eligible to receive widow allowance.
[S.P.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2010/59.html