Adams and Secretary, Department of Social Services (Social services second review)

[2017] AATA 504

Adams and Secretary, Department of Social Services (Social services second review) [2017] AATA 504 (19 April 2017)

DivisionGENERAL DIVISION

File Number            2016/1016

ReChristie Louise Adams

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

TribunalRegina Perton, Member

Date19 April 2017

PlaceMelbourne

The Tribunal affirms the decision under review.

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Regina Perton, Member

SOCIAL SECURITY - parenting payment (single) - whether applicant is a member of a couple – where parents live separately under same roof - where parents’ finances generally separate - where utility costs shared - where some household duties shared - where parents jointly accompany children on holidays and at school functions - where parents no longer have a sexual relationship - where parents still hold themselves out to be a couple in certain social settings - where parents share use of a motor vehicle - balance of considerations indicates applicant is part of a couple as defined in social security law - decision affirmed

Legislation

Social Security Act 1991 ss 4(2), 4(3)

Cases

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

Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2008) 102 ALD 22
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

REASONS FOR DECISION

Regina Perton, Member

19 April 2017

1. Christie Adams has two children, born in 2010 and 2014.  The children’s father is Mr M Farrugia.  From October 2010 to February 2015 Ms Adams was in receipt of parenting payment (single) applicable to a person who is not a member of a couple.  On 10 February 2015 Ms Adams advised the Department of Human Services (the department) that she was now a member of a couple with Mr Farrugia, and her parenting payment (single) was cancelled.   

2. In August 2015 Ms Adams and Mr Farrugia both informed the department that they had separated from each other in July 2015 but continued to live together in the same house.  On 13 October 2015 Ms Adams lodged a claim for parenting payment (single) and on 19 October 2015 the department refused the application on the basis that she was a member of a couple with Mr Farrugia.     

3. Ms Adams sought review of the decision.  On 17 November 2015 an authorised review officer affirmed the decision, and on 23 November 2015 she applied to the Tribunal for review of the decision.  On 8 February 2016 the Social Services & Child Support Division of the Tribunal affirmed the decision. On 25 February 2016, Ms Adams lodged an application for review of the Social Security & Child Support Division’s decision with the General Division of the Tribunal.

   ISSUE

4. The issue before the Tribunal is whether Ms Adams was a member of a couple on 13 October 2015 when she applied for parenting payment (single).

   WAS MS ADAMS A MEMBER OF A COUPLE ON THE RELEVANT DATE?

5. Section 4 of the Social Security Act 1991 (the Act) sets out the criteria for deciding whether a person is a member of a couple:

   4         Family relationships definitions - couples

   …

   (1)  Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

   …

   (b)all of the following conditions are met:

   (i)     the person has a relationship with another person, whether of the same sex or a different 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 de facto 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.

   (2)  In forming an opinion about the relationship between 2 people for the purposes of paragraph … (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters: 

   (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, or in a de facto relationship with, 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 or a de facto relationship.

6. In determining whether two people are living as members of a couple under the Act, in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170, O’Loughlin J referred to the list of circumstances in s 4(3) of the Act:

   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.

7. In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546, French J considered ss 4(2) and 4(3) of the Act and referred to the decision in Staunton-Smith and to the decision of Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128. He stated that in determining whether a marriage-like relationship exists under the Act, the nature of the exercise is much the same as that required under the statutory formula used in Lynam and Staunton-Smith.  In Lynam Fitzgerald J said, 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.

   In Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2008) 102 ALD 22 (Pelka No. 2) the Full Federal Court stated at 27:

   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…

8. The Court stated at 28:

   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…

   Financial aspects of the relationship

9. Ms Adams told the Tribunal that she and Mr Farrugia do not jointly own any real estate or major assets.  They maintain separate bank accounts.  She said that they commenced living together in 2008 in a house owned by Mr Farrugia.  They separated in 2010 but continued to live in the house until it was sold by Mr Farrugia in 2014.  Mr Farrugia purchased another house in the same area. Ms Adams lived with her parents for a period and then moved into Mr Farrugia’s new house, where she had lived as at the date of the claim under consideration   

10. In July 2015 Ms Adams and Mr Farrugia signed a handwritten agreement regarding rent and child support.  She was to pay him $170 per week in rent (not including bills) and was to care for the children.  He would pay for school fees, uniforms, swimming lessons and clothing.  She said that she paid for gas and electricity because Mr Farrugia works long hours and is not at the house very much, and she has a health care card and receives a discount on utility accounts, although she acknowledged that gas and electricity accounts are in joint names.  They each pay their own telephone account.

11. In a form submitted to the Department on 14 August 2015 Ms Adams stated that she and Mr Farrugia pay their own bills and do not share finances, although on the form she noted that he would lend her money if needed.  She also stated that she shares the use of a motor vehicle registered in Mr Farrugia’s name. Ms Adams indicated on the form that her share of use is 30 per cent, and that she pays for petrol when she uses the car. There is also another car registered in Mr Farrugia’s name, which Mr Farrugia maintains and uses exclusively.      

12. In a form submitted to the Department on 14 August 2015 Mr Farrugia confirmed the information provided by Ms Adams.  He stated that they do not give each other money or gifts, although he said that he has lent her money if needed.  He described Ms Adams‘s share of the motor vehicle as 20 per cent.         

13. At the hearing Ms Adams told the Tribunal that she does not keep records of her payments to Mr Farrugia under the informal agreement in respect of the rent and child support payments, but the arrangement works well.  Mr Farrugia did not give evidence.

14. The Tribunal accepts that living in the same house does not necessarily suggest a marriage-like relationship.  However despite the lack of documentary evidence there is some degree of interdependence and pooling of resources involving shared utility bills, despite Ms Adams making the actual payment of the bills, the sharing of a motor vehicle, and Mr Farrugia giving Ms Adams money if needed.  This is indicative of Ms Adams living as a member of a couple.   

    The nature of the household

15. Ms Adams stated that she and Mr Farrugia have separate bedrooms, living areas and bathrooms.  There is one kitchen. Ms Adams said that Mr Farrugia cooks for himself and that she cooks for herself and the children.  She performs general cleaning duties around the house, except for Mr Farrugia’s bedroom and lounge.  Ms Adams and Mr Farrugia each do their own laundry and shopping, and have separate areas of the kitchen for food storage.  Common items such as spices are shared.  She stated that Mr Farrugia maintains the property and garden. 

16. In respect of the children, Ms Adams said that she and Mr Farrugia provide support for each other as parents, and go on holidays together with the children.  They both attend any sporting or other function involving the children. Mr Farrugia shares the parenting by occasionally bathing or dressing the children and taking the older child to kindergarten.         

17. The Tribunal takes into account that certain aspects of the household are kept separate.  However the shared parenting, holidays and outings with the children, and household tasks such as cleaning and maintenance that are, generally speaking, divided between Ms Adams and Mr Farrugia are indicative of a household that is occupied by members of a couple.      

    The social aspects of the relationship

18. Ms Adams told the Social Services & Child Support Division that she and Mr Farrugia do not generally socialise together.  She said that she and Mr Farrugia hold themselves out to his family as a couple in the interests of the children because …his mother is very strict and would make our arrangement difficult.  She stated that friends and other relatives are aware that they are not a couple, even though they go out together on holidays and attend Anything that is for the kids.   

19. In the form submitted to the Department Mr Farrugia stated that Ms Adams sometimes holds herself out as his wife Just if a stranger or postman comes to the door and she is on her own… .

20. The Tribunal takes into account that Ms Adams and Mr Farrugia claim to have told friends and some of her relatives that they are no longer a couple.  However there is no objective evidence to support their claims, and they present as a couple to Mr Farrugia’s relatives and at functions for the children, including holidays.  This is indicative of Ms Adams being a member of a couple.  

    Any sexual relationship between the people

21. Although Mr Farrugia is the father of the children, both he and Ms Adams stated that they do not share a bed and no longer have a sexual relationship.  The Tribunal is not in a position to confirm or refute this evidence. 

    The nature of the people’s commitment to each other

22. Ms Adams has been living with Mr Farrugia since 2008, apart from several occasions when she returned to her parents’ home.  She acknowledged that she has had a close relationship with him for a number of years.  In the form submitted to the Department she stated that she intended to remain living with Mr Farrugia for more than 6 months, but was unsure of the period.  She also stated that she and Mr Farrugia have been friends… for a very long time and provide support for each other as parents.  

23. The Tribunal accepts that a commitment to the children does not necessarily suggest a commitment to each other.  However Ms Adams and Mr Farrugia have resided together since 2008, they make joint decisions as parents, and attend functions and take holidays together with the children.  They appear to have a close relationship based on mutual trust, as indicated by the lack of a formal child support agreement and the lack of financial records of rent payments.  This is indicative of Ms Adams being a member of a couple. 

    Conclusion

24. Taking into account the required criteria as a whole, the relationship between Ms Adams and Mr Farrugia appears to be close and mutually supportive.  Although the Tribunal accepts that they no longer have a sexual relationship, the other factors are indicative that Ms Adams and Mr Farrugia share responsibilities and have maintained other aspects of a joint relationship, not only as parents but as partners, over a considerable period.      

25. The Tribunal finds that Ms Adams was a member of a couple on 13 October 2015 when she made her application for parenting payment (single).

    DECISION

26. The Tribunal affirms the decision under review.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member

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Associate

Dated 19 April 2017

Date of hearing	1 August 2016
Applicant	By Telephone
Advocate for the Respondent	Mr J Henderson
Solicitors for the Respondent	Department of Human Services, Freedom of Information & Litigation Branch