Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

(ii) the person is not legally married to the partner;

(iii) the relationship between the person and the partner is, in the opinion [of the relevant decision maker], a marriage-like relationship;

(iv) both the person and the partner are over the age of consent applicable to the State…in which they live;

(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B the Marriage Act 1961. 5 Section 4(3) of the Social Security Act provides that, in forming an opinion about the relationship between two people for the purposes of s 4(2)(b), the decision maker is to have regard to all the circumstances of the relationship, including, in particular, the following matters: (a) the financial aspects of the relationship…;

(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;

(e) the nature of the people's commitment to each other, including:

(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.

THE TRIBUNAL'S DECISION 6 It was common ground before the Tribunal that all but one of the conditions referred to in s 4(2)(b) were met in relation to a relationship between Ms Pelka and Mr Michel Kuhl (Mr Kuhl). The issue before the Tribunal was whether or not the relationship between Ms Pelka and Mr Kuhl was a marriage-like relationship. The opinion of the Tribunal, the relevant decision maker in relation to this appeal, was that their relationship was a marriage‑like relationship. Accordingly, it followed that, for the purposes of the Social Security Act, Ms Pelka was a member of a couple. In forming that opinion about the relationship between Ms Pelka and Mr Kuhl, the Tribunal had regard to a number of circumstances of their relationship. 7 In its reasons, the Tribunal referred expressly to the matters and associated factors specified in s 4(3) of the Social Security Act. It dealt with the financial aspects of the relationship between Ms Pelka and Mr Kuhl, the nature of their household and the social aspects of their relationship. No complaint is made about the treatment and findings in respect of those matters. Next, the Tribunal dealt with the question of whether there was any sexual relationship between Ms Pelka and Mr Kuhl. Finally, the Tribunal addressed the nature of their commitment to each other. Ms Pelka complains about the way in which the Tribunal dealt with the last two matters. 8 The Tribunal found that Ms Pelka first met Mr Kuhl at a party in 1985. On 21 June 1988, Ms Pelka and Mr Kuhl departed Australia together and returned to Australia together on 2 July 1988. They subsequently had twelve overseas holidays together between 1992 and 2001. In 1988, Ms Pelka purchased a two bedroom home unit where Ms Pelka and Mr Kuhl both lived from 1988 until September 2004. On 7 July 1989, Ms Pelka and Mr Kuhl opened a joint account with Home Building Society. On 24 September 2004, Mr Kuhl became the sole holder of that account and Ms Pelka was named as a third party signatory. 9 Ms Pelka and Mr Kuhl gave evidence that there never had been a sexual relationship between them. Further, the Tribunal said that there was no evidence that contradicted that evidence or on the basis of which the Tribunal could find that there had ever been a sexual relationship between them. However, there were various aspects of the evidence of Ms Pelka and Mr Kuhl that the Tribunal considered were unsatisfactory. 10 The most important unsatisfactory aspect of their evidence was the evidence in relation to the joint account with Home Building Society. There was also variation and inconsistency in Ms Pelka's evidence and Mr Kuhl's evidence concerning the circumstances in which Mr Kuhl moved into the home unit. Another aspect about which the Tribunal had serious reservations was the evidence regarding the interpersonal relationship between Ms Pelka and Mr Kuhl. 11 The Tribunal considered that Ms Pelka and Mr Kuhl appeared to be at pains to minimise their relationship as much as possible and to be evasive and not forthcoming in giving their evidence in cross-examination. The Tribunal considered that their evidence was, in important respects, inconsistent and lacking in candour. Accordingly, the Tribunal considered that it was appropriate, in forming an opinion about the nature of the relationship between them during the Relevant Period, to place greater reliance on the objective evidence than on the evidence given by Ms Pelka and Mr Kuhl themselves. 12 The Tribunal considered that the financial aspects of the relationship between Ms Pelka and Mr Kuhl did not point strongly either towards or against the existence of a marriage-like relationship. Although there was apparently a high degree of financial independence between them, there was also a substantial degree of financial cooperation between them. 13 In relation to the nature of their household, the Tribunal considered that the relevant factors, on balance, probably pointed against the existence of a marriage-like relationship, but not strongly. Those factors included their evidence that, while they shared the use of the lounge room, kitchen and bathroom and of the furniture in those rooms, they slept in separate bedrooms, did their own cooking and washing and cleaning of their own bedrooms. 14 In considering the social aspects of the relationship, the Tribunal referred first to objective evidence pointing towards the existence of a marriage-like relationship between Ms Pelka and Mr Kuhl as follows: · Information provided by various employers indicating that Mr Kuhl described his marital status to them as "de facto" and referred to Ms Pelka as his "de facto" or "partner". · Ms Pelka and Mr Kuhl departed Australia on the same flight on thirteen occasions between 1988 and 2001, including two occasions during the Relevant Period, and returned to Australia on the same flight on eleven occasions between 1988 and 2001, including one occasion during the Relevant Period. 15 The Tribunal then referred to evidence pointing away from a marriage-like relationship, being the evidence of Ms Pelka and Mr Kuhl to the effect that they did not present as a couple to members of their respective families or engage in social or leisure activities together, apart from an occasional outing to the cinema and their overseas holidays. In particular, Ms Pelka said that she never introduced Mr Kuhl to her mother when they visited Singapore, where her mother lives, because he does not speak Chinese and her mother does not speak English. However, the Tribunal found it difficult to accept that Ms Pelka would not have introduced to her mother, during such a visit, a man with whom she said in her evidence she had formed a "god sister/god brother" relationship and developed a close "spiritual" bond. The Tribunal found Ms Pelka's reason for not introducing Mr Kuhl unconvincing. 16 The Tribunal concluded, in relation to the social aspects of the relationship, that the objective evidence pointing towards a marriage like-relationship was not outweighed by the oral evidence given by Ms Pelka and Mr Kuhl. That evidence was not corroborated by any independent third party or supported by any other objective evidence. 17 The Tribunal then considered the question of any sexual relationship between Ms Pelka and Mr Kuhl. The Tribunal observed that, if it be the fact that there never has been a sexual relationship between them, that would clearly militate against the existence of a marriage-like relationship between them. While there was no evidence before the Tribunal that disproved the assertion, the Tribunal was not prepared to accept unreservedly the evidence of Ms Pelka and of Mr Kuhl that they never had a sexual relationship. Rather, the Tribunal preferred not to make a finding in relation to that matter and treated it as neutral for the purpose of determining whether or not a marriage-like relationship existed during the Relevant Period. 18 Finally, the Tribunal had regard to the objective evidence as to whether during the Relevant Period there was a mutual commitment between Ms Pelka and Mr Kuhl of a nature indicative of the existence of a marriage-like relationship. In that regard, the Tribunal referred to the following: · Their residing together in the home unit for approximately sixteen years from 1988 to 2004. · Their travelling overseas together on thirteen occasions between 1988 and 2001. · Mr Kuhl's nominating Ms Pelka as the beneficiary of his estate under his will and for the purposes of his superannuation and life insurance. · Mr Kuhl's describing Ms Pelka as his "de facto" or "partner" in documents completed by him in relation to employment and superannuation during the Relevant Period. 19 The Tribunal found it difficult to accept the evidence of Ms Pelka and Mr Kuhl that they never discussed with each other their personal lives or other personal matters, such as their employment, and that they never confided in each other. The Tribunal considered that that was inconsistent with the long standing relationship that existed between them, which the Tribunal was satisfied was characterised by mutual affection, trust and respect. The Tribunal found it very difficult to accept their evidence to the effect that they would not provide help and support to each other in time of need to any greater extent than they would to any other person in similar circumstances. 20 The Tribunal was satisfied that Ms Pelka and Mr Kuhl would have provided to each other physical and emotional support commensurate with the close and special bond that, according to their own evidence, existed between them from 1988, at the latest. The Tribunal was satisfied that prior to and during the Relevant Period, Ms Pelka and Mr Kuhl displayed a special commitment to each other, both physically and emotionally, that was qualitatively different from the commitment that each of them had to any other person. The Tribunal was also satisfied that, for the duration of the Relevant Period, Ms Pelka and Mr Kuhl had no desire to change their existing living arrangements and that their commitment to each other militated strongly in favour of the existence of a marriage-like relationship during the Relevant Period. 21 Having had regard to the interpersonal relationship between Ms Pelka and Mr Kuhl as a whole and after referring to the matters and factors specified in s 4(3) of the Social Security Act, the Tribunal was satisfied that the true nature and character of that interpersonal relationship during the Relevant Period was that of a marriage-like relationship. While some factors pointed against a marriage-like relationship and others pointed towards a marriage‑like relationship, the Tribunal considered that the nature and degree of the commitment of Ms Pelka and Mr Kuhl to each other prior to and during the Relevant Period tipped the balance in favour of the existence of a marriage-like relationship between them for the whole of the Relevant Period.

GROUNDS OF APPEAL 22 In the written submissions provided to the Court on behalf of Ms Pelka by her counsel, the following questions of law were purportedly identified: (a) whether the Tribunal committed an error of law in declining or omitting to make a finding as to whether Ms Pelka and Mr Kuhl had, at any material time, a sexual relationship; (b) whether the Tribunal, in taking into account a comparative, qualitative assessment of the relationship between Ms Pelka and Mr Kuhl, relative to the commitment that either of them had to any other person, committed an error of law by: · making a factual finding without any evidentiary basis for the finding; · taking into account an irrelevant consideration; and · denying Ms Pelka procedural fairness. 23 Those questions of law are said to correspond respectively with the following grounds of appeal: (1) The Tribunal erred in law in that it failed to determine any sexual relationship of Ms Pelka as a member of a couple as required by s 4(3) of the Social Security Act.

(2) The Tribunal erred in law in that it took into account a comparative qualitative assessment of Ms Pelka's relationship:

(a) without any evidentiary basis to allow the comparison;

(b) when the comparison was irrelevant to its determination; (c) without notice to Ms Pelka of its intention to take such a matter into account.

NO FINDING CONCERNING SEXUAL RELATIONSHIP 24 There is nothing in s 4(3) that requires the relevant decision maker to make a finding of fact as to any of the matters specified in that provision. Rather, the decision maker is required to have regard to all the circumstances of the relationship, including the specified matters, in forming an opinion about the relationship between two people. Having regard to a matter does not require making a finding of fact about that matter (see Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [34]-[38]). 25 Clearly, the Tribunal had regard to the question of whether there was any sexual relationship between Ms Pelka and Mr Kuhl. In considering the question, the Tribunal referred expressly to the oral evidence given by Ms Pelka and Mr Kuhl, which the Tribunal was not prepared to accept in the absence of corroboration of some sort. The Tribunal was clearly not prepared to make a finding that there was no sexual relationship between Ms Pelka and Mr Kuhl. Indeed, it is highly unlikely that there could be any finding on the sexual relationship that was other than adverse to Ms Pelka's case. The Tribunal did not believe uncorroborated evidence given by either Ms Pelka or Mr Kuhl. In effect, the Tribunal gave Ms Pelka the benefit of not making a positive finding that there was a sexual relationship between them, in circumstances where the Tribunal clearly had reservations about the veracity of their evidence. 26 There was no error of law on the part of the Tribunal in failing to make a finding one way or the other as to whether there was a sexual relationship between Ms Pelka and Mr Kuhl.

COMPARATIVE QUALITATIVE ASSESSMENT 27 The Tribunal was satisfied that Ms Pelka and Mr Kuhl displayed a special commitment to each other, both physically and emotionally, which was qualitatively different from the commitment that either of them had to any other person. Ms Pelka contended that neither the express terms of the Social Security Act nor any implication that might arise from the terms of the Social Security Act justified a finding of that kind. Ms Pelka said that whether the relationship that Ms Pelka and Mr Kuhl had with each other is different from any relationship that they might have with other people is irrelevant to the opinion that the decision maker must form. 28 Further, Ms Pelka contended that the evidence before the Tribunal did not canvass the nature, content, diversity or uniqueness of any relationship that Ms Pelka or Mr Kuhl may have had with any other person to enable such a finding to be made. Ms Pelka contended that to draw an inference to that effect constituted an error of law. 29 Finally, Ms Pelka contended that, since the finding in question was critical to the ultimate decision made by the Tribunal, it was incumbent upon the Tribunal to draw Ms Pelka's specific attention on reasonable notice to the possibility of its making such a finding. She said that the failure by the Tribunal to do so was a denial of procedural fairness. 30 The matter to which s 4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly, the Tribunal had regard to those four specific matters in terms. 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. The same reasoning applies in relation to the commitment of Mr Kuhl to Ms Pelka. The Tribunal, as the decision maker, had regard to precisely the matter to which it was required to have regard, namely, the nature of the commitment of Ms Pelka and Mr Kuhl to each other. 31 The Tribunal summarised the evidence that it considered led to the conclusion that there was a mutual commitment between Ms Pelka and Mr Kuhl. As indicated previously, that evidence included the following: · Their residing together for approximately sixteen years. · Their travelling overseas together on thirteen occasions. · Mr Kuhl's nominating Ms Pelka as beneficiary in his will and for superannuation purposes. · Mr Kuhl's describing Ms Pelka as his "de facto" or "partner". The inference is clearly open from those findings that neither Ms Pelka nor Mr Kuhl had a similar commitment to any person involving these matters. The Tribunal was also entitled to have regard to the fact that Ms Pelka and Mr Kuhl, in giving their evidence, were at pains to minimise their relationship generally. It was also entitled to have regard to its assessment that their evidence was, in important respects, inconsistent and lacking in candour. There 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. 32 There was desultory evidence before the Tribunal of relationships that Ms Pelka and Mr Kuhl had with other people. Thus, Ms Pelka is now married although there appears to be no evidence concerning any relationship between Ms Pelka and her present husband during the Relevant Period. There was also some brief evidence that at some time, which appears to have been before the Relevant Period, that Mr Kuhl had a lady friend with whom he stayed on occasion. That evidence could not possibly have supported a finding that, during the Relevant Period, Mr Kuhl or Ms Pelka had a commitment to any person that was qualitatively equivalent to the commitment that the Tribunal found that they had to each other. 33 In the course of final addresses, the Tribunal put to counsel for Ms Pelka that it was her case that Ms Pelka and Mr Kuhl would not treat each other any differently from any other acquaintance who needed assistance. Thus, it was apparent that the Tribunal was adopting a comparative approach to the relationship that existed between Ms Pelka and Mr Kuhl. The Tribunal suggested that, in the course of final address, that, relatively speaking, they would be more concerned or would give more support to each other than they might give to some friend with whom they did not have any particular association. The Tribunal suggested that that would be a fair understanding of the evidence. That was a fair indication to Ms Pelka that the Tribunal may make a finding on the terms about which complaint is now made. 34 The specific terms of s 4(3) make it clear that the issue before the Tribunal was the nature of the commitment of Ms Pelka and Mr Kuhl to each other. In reaching its conclusion as to the nature of that commitment, the Tribunal did not have regard to any material that was not provided by Ms Pelka and Mr Kuhl or was not expressly put to them. Ms Pelka must have understood from the nature of the proceeding that the Tribunal, as the decision maker, would have regard to each of the matters specified in s 4(3). The Tribunal, in the reasoning that led to its forming the opinion that the relationship between Ms Pelka and Mr Kuhl was a marriage-like relationship did not go beyond the express terms of s 4(3) of the Social Security Act. There was no denial of procedural fairness on the part of the Tribunal. 35 There was no error of law on the part of the Tribunal in the manner in which it dealt with the nature of Ms Pelka's and Mr Kuhl's commitment to each other.

CONCLUSION 36 The appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Emmett and Siopis.

Associate: Dated: 30 May 2008 Counsel for the Applicant: Mr R L Hooker Solicitor for the Applicant: Peter J Griffin & Co Counsel for the Respondent: Ms L B Price Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 May 2008 Date of Judgment: 30 May 2008