A and Secretary, Department of Employment and Workplace Relations
[2006] AATA 253
•16 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 253
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1168
GENERAL ADMINISTRATIVE DIVISION ) Re A Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Professor T. Sourdin, Member Date16 March 2006
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution decides that A is entitled to Disability Support Pension at the single rate from 3 June 2004.
[Sgd] Prof T. Sourdin
Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Applicant living at same address as her former de-facto husband – Claim that living separately and apart at shared address – Not a member of a couple – Decision under review set aside.
LEGISLATION
Social Security Act 1991 ss 4 and 24
CASES
Re Rendell and Secretary, Department of Family and Community Services (2004) 83 ALD 381
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
In the Marriage of Pavey (1976) 10 ALR 259
Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7
Re Secretary, Department of Social Security and SRJ (AAT 10970 29 May 1996)
Re Secretary, Department of Family and Community Services and McQueeney [2004] AATA 831
Re SRL and Secretary, Department of Social Security (1998) 51 ALD 796
REASONS FOR DECISION
16 March 2006 Professor T. Sourdin, Member SUMMARY
1. The Applicant is a mature aged person who lives in Sydney. She is devoutly religious and has a daughter who is studying to become a nun. By reason of the nature of this application, orders were made pursuant to section 35 of the Administrative Appeals Tribunal Act 1975. For the purpose of these proceedings the female person concerned (the Applicant) will be identified as “Ms A” and the male person concerned will be identified as “Mr A”.
2. Ms A is appealing a decision made by the Social Security Appeals Tribunal (“SSAT”) on 9 August 2005 that she was a “member of a couple” or “partnered” as at 3 June 2004. Ms A is receiving Disability Support Pension (“DSP”) and, if she is not a member of a couple, she will receive a higher rate as it will not be affected by income earned by her partner. Ms A wants back pay of the higher rate of DSP from the date she informed Centrelink that they had separated, being 3 June 2004.
3. Ms A has suffered from various forms of cancer from 1989 and has had a number of surgical interventions since that time. Although she has not divorced from Mr A and remains living under the same roof, I accept the evidence of Mr and Ms A that they should not be treated as a couple for the purposes of Ms A’s entitlements. It follows that the decision under review is set aside and Ms A is entitled to receive DSP at the single rate from 3 June 2004.
ISSUE
4. The issue for the Tribunal to determine is whether Ms A was a member of a couple as at 3 June 2004.
5. Section 4 of the Social Security Act 1991 (“the Act”) provides when a person is a member of a couple for the purposes of social security law. Subsection (2)(b) sets out, in part, that a person is a member of a couple for the purposes of this Act if certain conditions are met. The main question for the Tribunal is that set out in paragraph (iii), as follows:
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
6. Further provisions in subsection 4(3) of the Act deal with matters to be taken into account in forming an opinion about the relationship between two people. These relate to financial aspects such as joint ownership of real estate and pooling of financial resources, the nature of the household, the social aspects of the relationship, any sexual relationship between the people and the nature of their commitment to each other. Commitment is illustrated by matters listed such as the length of the relationship and how other people see their relationship.
BACKGROUND
7. Ms A migrated from Egypt to Australia in August 1978. Ms A and Mr A were married in an Anglican Church in Australia in 1979. They have three adult children born from 1980 to 1982. Mr and Ms A purchased land and built a house together in the early 1980’s. Both Mr and Ms A are members of the Coptic Orthodox Church. In 1994 the Coptic Orthodox Church ruled that their marriage was void because Mr A had been married prior to his marriage to Ms A and he had not obtained the Church’s permission to remarry. The Church ruled that Mr and Mrs A not live together as husband and wife but live together as mother and father to their children in a ‘brother and sister’ relationship. From this time, the relationship between Mr and Ms A degenerated and neither Mr or Ms A consider that they have lived as a married couple since 1999. Ms A and Mr A were living under the same roof and in the same house at the time of the Tribunal’s hearing.
ANALYSIS
8. As noted above, section 4 of the Act sets out tests as to when a person is a member of a couple. Subsection 4(3) describes matters that the Secretary or Tribunal must consider in forming an opinion about the status of Ms A and Mr A. However, in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, the Federal Court stated that the factors in subsection 4(3) of the Act are not exhaustive and are only indicators. The preferable course is (at 170):
“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.”
9. In addition, In the Marriage of Pavey (1976) 10 ALR 259, the Full Court of the Family Court ruled that paries must show why they continue to live under the same roof and be able to point to the factors, either gradual or sudden, that show a change in their relationship, leading to a separation. Therefore, I have considered the statutory factors as well as the whole of the circumstances of the relationship in reaching my decision.
Financial Aspects
10. Ms A and Mr A purchased land and built a house as joint tenants. Ms A contributed to mortgage payments and household expenses while she worked (until 1996). Neither Mr nor Ms A currently plan to move out of the house. Each has indicated that they could not afford to do so. Mr A says that he would move out if he had the resources. Ms A (with her daughter’s assistance) may sever the joint tenancy in the near future and hold the property as tenants in common with her husband. Each party has made provision in their wills to leave the property to their children and Ms A did not appear to understand the difference between a joint tenancy and a tenancy in common. When this matter was raised in re-examination Ms A indicated that her daughter would assist her to change the survivorship arrangements. A further issue arose about a power of attorney that had been signed in the early 1990’s. Ms A did not give evidence about this – however her consistent attitude when giving evidence was that she intended all financial arrangements to be separate.
11. Ms A has never learnt to drive and is partially sighted (having lost vision in one eye following the spread of cancer) although she had a car registered in her name for a time that belonged to her son. It was registered in her name to reduce insurance costs. To travel, Ms A uses public transport or her son or daughter will drive her. Mr A has a car that he uses. Ms A is never a passenger in this vehicle.
12. During the early years of their marriage, Ms A and Mr A pooled their financial resources whilst living together at Kingsgrove and shared major assets such as the car and the house. Mr A controlled all income and the joint account. Mr A paid most of the bills for the household and Ms A’s salary was paid into a joint account until 1997. Ms A received an allowance from her husband during the time that she worked (until 1997). Since 1997 (when Ms A started receiving the DSP) she has kept her own bank account. Ms A pays for her medicine, transport, groceries, food, telephone and clothes. Utility bills are largely paid by Mr A although the broadband bill is also apportioned between the adult children. It would appear that Ms A rarely makes any contribution to any utility bills or other household costs. From these circumstances, it is clear that Mr A and Ms A did continue to mingle their finances to a degree after they say they separated and it is also clear that Mr A pays a far higher proportion of utility and other bills (not food and other groceries). He does so because he wishes to support his adult children – not because he seeks to support Ms A. Ms A indicated that she might be more likely to pay some utility bills in the event that she was granted the higher pension amount.
13. In the case of Re Rendell and Secretary, Department of Family and Community Services(2004) 83 ALD 381, Member Trowse held that an arrangement based on mutual affordability of housing and material welfare did not of itself correspond to a marriage-like relationship. I accept that, in the present case their living arrangement was based on mutual contributions and what was affordable for both. Both paid for grocery, medical and most other bills separately. Mr A has however contributed more to the payment of utility bills. In this respect, their financial contributions could not be said to be equal. However, Mr A’s intention does not appear to be to support Ms A in any way – the support appears to be a by product of Mr A’s decision to pay all bills for his adult children. The support could not be said to be ‘marriage like’ but appears to be based on different considerations – mainly Mr A’s support of his adult children.
14. Mr and Ms A each hold a separate bank account. Mr A has his salary paid into his account. Ms A has her disability pension paid into her account. They hold one joint account that was accessed only by Mr A until September 2004. Into this account a newstart pension allowance is paid in Mr A’s name. It would appear that following arguments between Mr and Ms A in May 2004, Mr A ceased paying for and cancelled Ms A’s Medibank Private account. Ms A did not become aware of this for some months. This was a serious matter for Ms A who remains on strong medication for her cancer therapy. Ms A accessed the ANZ joint account in September 2004 and used this money to pay her Medibank Private account and outstanding arrears. Mr A does not and has not used the account since September 2004. Mr A, in evidence, said that he had asked ‘Social Security’ to cancel the benefit that is paid into this account but that they had taken no action. Mr A in evidence said that he was ‘not responsible’ for Ms A and I accept that this is his understanding.
15. During the hearing, the Respondent suggested that Mr and Ms A had not been candid and had not disclosed this joint account when Ms A and Mr A completed forms relating to an Assessment of Living Arrangements (T5). Mr and Ms A indicated that they had been informed that they did not need to disclose details about which the Department was already well aware. I accept that this was their understanding.
Nature of the household
16. Ms A and Mr A have two adult children from their relationship who continue to reside at the Kingsgrove house. After Mr A and Ms A separated but continued to live under the one roof, they had separate living and sleeping arrangements. I accept their oral evidence that this was the case. Those separate living and sleeping arrangements had been in place from around 1997. However it would appear that since May 2004 the arrangements have been even more distinctly separate. For example, prior to May 2004, Mr A may have eaten left over food prepared by Ms A. However following the argument in May 2004 all food has been separately labelled. When Ms A enters the kitchen, Mr A leaves it and Ms A eats her meals in her bedroom if Mr A is in the house. Ms A tends to the rear garden while Mr A tends the front garden. They have separate bedrooms and bathrooms. Mr A has, as his living space, the lounge and dining areas in the downstairs area at the front of the house. Ms A uses the kitchen and family area at the rear of the house as well as her bedroom and the garden as living space. Ms A has a large garden where she grows much of her food. She is a vegetarian and Mr A does not use any produce from this garden.
17. Ms A told the Tribunal that she has her own bedroom and bathroom at one end of upstairs section of the house and Mr A has the bedroom at the other end of the upstairs part of the house.
18. After the initial separation in 1995 (when the parties began occupying separate bedrooms), Mr A took some continuing responsibilities for Ms A. He contributed more to the payment of utility bills. Ms A did most of the indoor housework and laundry and tended the garden. They did not eat together or watch television together or share other household activities.
19. I consider that the household continued as a shared one where Ms A could be regarded a ’member of a couple’ until about 2004. There was some evidence of a dramatic falling out between Mr and Ms A in May 2004. This evidence was somewhat inconsistent. Clear evidence that was supported by Mr and Ms A and their daughter concerned a gradual decline in the relationship. It is clear that they each formed part of a household that was shared but, at the same time, they lived apart in many respects until 2004. The distance between the couple increased over time until a final argument where the police were called in May 2004. By the time of the application made by Ms A the couple were effectively living apart except in relation to some financial arrangements – namely the unequal bill payments referred to previously. Mr and Ms A have no shared debts or credit arrangements.
Social aspects of the relationship
20. Mr A and Ms A regard themselves as separated. Ms A says that all of her family, friends and church are aware of the separation. The circumstances surrounding the breakdown of their marriage are somewhat unusual. The Applicant’s daughter (referred to as “Mrs B”), a solicitor, gave evidence and made a statutory declaration (A2). Mrs B said that:
“4. I regard my parents as living separately and apart
…
(a) The Coptic Orthodox Church (“the Church’) ruled that the marriage of my parents was null and void. This was because my father was previously married and divorced, and did not obtain the Church’s permission to remarry.
(b) Further the Church ruled that my parents were to live separately, that is, to have no sexual relationship... To the best of my knowledge and belief, my parents complied with this ruling since 1995.”
21. Mr A considered that the marriage declined and ‘ended’ for reasons other than the threatened excommunication with the Coptic Church. He indicated that there had been a decline in the marriage following the various cancer diagnoses that were made from 1989. Ms A said that she had been told that she would be excommunicated by the Church if she did not live as ‘brother and sister’ – or ‘father and mother’ rather than ‘husband and wife’ with Mr A. She converted to the Coptic faith in the early 1990’s and is devoutly religious. Ms A was baptised in the Coptic Church when she was ill and near death. She had previously been of the Anglican religion and on her evidence had been a young and naïve non English speaker when she arrived in Australia. Her wedding to Mr A took place after an introduction by a priest. The Coptic Church played a strong role in her life after she was diagnosed with cancer. The Coptic Church edict was difficult for her to accept initially regarding the invalidity of her marriage to Mr A. Ms A has however played a role in the Church where she does ongoing charity work and I accept that it is a very important and influential part of her life. Her youngest daughter recently spent a year studying to become a nun in the Coptic Church.
22. On the basis of the evidence given I am satisfied that Mr and Ms A regard themselves as not married and not living in a marriage-like relationship. They both consider that the relationship broke down for various reasons and that there was a decline in their social contact and relations from 1995 and following the acceptance of the Coptic Church edict and the continuing battle with cancer suffered by Ms A. Ms A indicated in evidence that a Coptic Church Bishop had said that she could not divorce Mr A – although she was required by the Church to no longer live as a couple with Mr A – and that she “wanted to please the Lord.” Ms A also said that it was her understanding that if she wanted to be in the Church and take Holy Communion then she had to live under the one roof with Mr A.
23. From 1995 it would appear that Mr and Ms A continued to have brief social contact however this reduced as the years went by. Gradually Ms A set up her own bank account (1997) and family meals ceased at around the same time. Although Mr and Ms A ceased sharing a bedroom in 1995 and Mr A and Ms A started alternatively sleeping on the couch downstairs, they set up more permanent separate bedroom arrangements in 2003 when Ms A moved into her daughter’s bedroom. The relationship until May 2004 could be described as difficult with both parties rarely speaking to each other. In May 2004 the couple had an intense argument on the eve of their daughter’s wedding. Following that argument they have regarded themselves as completely separate individuals. Mr A considered the final act in the separation to be the lodging of the application by Ms A for single disability support benefits in early June 2004.
24. Mr and Ms A started attending different churches prior to 1995. Mr A gave evidence that the priest refused to give him Holy Communion because of the Coptic Church edict (T14). When Mr A was asked who knew of the separation from his wife he said that family, work colleagues and friends knew of the separation but that he did not talk to anyone at the Church as he ‘was not proud of it.’ Ms A said that all her friends, family and those at the Church who she knew well understood that she was separated. They do not share any social network and if the children are invited to eat a meal at the house Mr A is not invited. Mr A does not look after or support Ms A when she has problems with her cancer but did so until some time in the mid 1990’s. In evidence, Mr A said that he did not know if she was having any more operations and did not know of her current medical state.
25. Ms A further stated that they did not socialise together frequently before the separation of May 2004 and not at all afterwards. They do not have holidays together and have not done so for more than a decade. At the time of the hearing Mr A was aware that Ms A was going on a holiday but knew so only because he had seen her luggage. I am satisfied on evidence that the couple share no social information. Overall, the evidence before the Tribunal of social aspects advances the quality of evidence of the separation.
Sexual relationship
26. Ms A and Mr A told the Tribunal that they no longer had a sexual relationship. The advocate for the Respondent indicated that this was accepted. I note this is only one aspect of the tests of whether persons are a couple and is not conclusive on its own.
27. In relation to the possibility of relationships with other persons, both Mr and Ms A indicated that there would be strong religious reasons that would prevent the forming of other relationships.
Nature of Mr A and Ms A’s commitment to each other
28. In terms of Mr A’s and Ms A’s commitment to each other, I have formed the view that they are not committed in any respect to each other although both remain committed to the care of their adult children.
29. In the form completed by Ms A on 24 June 2004 (T6) advising Centrelink of their separation, Ms A stated that much of the form was completed by Centrelink staff as she could not write well in English. There seem to be some errors in the form and the handwriting in the sections is different. Both she and Mr A considered that their relationship was different to that of a married couple.
CONCLUSION
30. Although there are some financial indicators of a marriage-like relationship between Ms A and Mr A that continued after they declared they had separated in 2004, I have taken into account the whole of the evidence that has been given and am satisfied that both Ms A and Mr A’s relationship has become one similar to that of a divorced couple. There are some financial links that remain but these links do not support the view that they are a member of a couple. As a result, I find that the nature of their commitment to each other does not conclusively make it a marriage-like relationship.
31. Relevantly section 4(2)(b) of the Act provides that a person is a “member of a couple” for the purposes of the Act if the following conditions are met:
“. . .
(i)the person has a relationship with a person of the opposite sex (in this paragraph called the partner);
(ii)the person is not legally married to the partner;
(iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:
* an ancestor of the person; or
* a descendant of the person; or
* a brother or sister of the person (whether of the whole blood or the part-blood).”
32. Section 4(3) of the Act (reproduced below) records criteria to assist in forming an opinion about the relationship, that is, whether it is a marriage-like relationship:
“(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 day-to-day 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 marriage-like relationship.”
33. In Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7, the Tribunal said at paragraph 11:
“…… that in deciding whether a person is a ‘member of a couple’ for the purposes of s4(2) of the Act, an opinion is formed having regard to all the circumstances of the relationship, including, in particular, those matters enunciated in paragraphs 4(3)(a) to (e) inclusively. Those provide objective criteria, which can be determined on the evidence. However, there is no guidance as to how much weight one attributes to each criterion. In the circumstances, it falls to the Tribunal to make a value judgement giving weight to each criterion having regard to all the circumstances of the relationship. The criteria must be considered as a whole in context.”
34. Both Mr A and Ms A gave evidence in a straightforward manner and I accept that they gave evidence about their own perceptions regarding the breakdown in their marriage. Mrs B, a solicitor and the daughter of Mr A and Ms A, gave evidence and also filed a statutory declaration. I accept her as a witness of truth. As noted previously, there are clearly some financial indicators of a marriage-like relationship between Mr and Ms A that continued after their separation and notification to Centrelink in June 2004. However, I have taken into account all of the required factors under section 4 of the Act. On balance, I find that the full circumstances of the situation lead me to conclude that the relationship was no longer marriage-like.
35. In reaching this decision, the Tribunal also takes into account the reasoning in Re Secretary, Department of Social Security and SRJ (AAT 10970 29 May 1996), referred to by the Respondent as being applicable in this matter in that the marriage could be described as a “bad” rather than “broken” marriage. On the evidence before it, the Tribunal is of the opinion that “broken” is a more realistic and appropriate characterisation.
36. The Respondent indicated that a household of sorts continued to operate and some type of family unit continued to exist. However, having regard to the Tribunal decision in ReSecretary, Department of Family and Community Services and McQueeney [2004] AATA 831 where it was suggested, and as the parties here have developed, for the sake of the children, a distant relationship based on the care of the children and in this case influenced by the Applicant’s very real health issues with cancer, then this should not be sufficient to suggest that a marriage-like relationship exists.
37. Having regard to the totality of the evidence the Tribunal is satisfied that Ms A and Mr A were living separately and apart and not members of a couple at the time of the claim, or at any time since.
38. Additionally it was suggested that there was a “special reason” under section 24(2) of the Act to treat Mr A and Ms A as not being members of a couple, and that “special reason” should be interpreted as the equivalent of “special circumstances”. It was submitted that there were circumstances which could be regarded as “special” thereby permitting the relationship to be regarded as not being marriage-like. Section 24 of the Act was extensively discussed in Re SRL and Secretary, Department of Social Security (1998) 51 ALD 796. That application involved a marriage where the circumstances were described as being unusual or extraordinary. There was a finding made that the parties did not pool their resources, they lived separate lives, they did not have a sexual relationship nor did they provide each other with emotional support or jointly participate in the care of their children. They did not own assets or other property jointly, the marriage was entered into upon false representations, one party did not have English skills at the time of marriage, the wife was exposed to physical threat and was not aware of the existence of women’s refuges. There was also a finding that the wife did not knowingly mislead the Department or make false representations. In those circumstances it was decided that it would be appropriate to exercise the discretion under section 24 of the Act and find that there was a special reason permitting the parties as not being in a marriage-like relationship. Given the finding that I have made above, it is not necessary to make a finding in respect of section 24 of the Act. However, it does seem to me that the nature of the Coptic Church’s involvement in this matter taken together with all of the circumstances (including Ms A’s health) could constitute special circumstances.
DECISION
39. The Tribunal sets aside the decision under review and in substitution decides that Ms A is entitled to Disability Support Pension at the single rate from 3 June 2004.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Professor T. Sourdin, Member.
Signed: A. Garcia
Associate
Date of Hearing: 10 and 17 February 2006
Date of Decision: 16 March 2006
Representative of the Applicant: self represented
Advocate for the Respondent: Mr J. Larcombe
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