Angelina Nicol and Secretary, Department of Social Services

[2014] AATA 886

[2014] AATA 886

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4211
Re	Angelina Nicol
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	28 November 2014
Place	Sydney

The decision under review should be set aside. I decide in substitution that the applicant was not a member of a couple from 19 January 2005 to 13 October 2011.

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Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – debt – whether the applicant was a member of a couple during the relevant period – financial aspects of relationship – nature of household – social aspects of relationship – any sexual relationship – nature of people’s commitment to each other – decision set aside

LEGISLATION

Social Security Act 1991 s 4

REASONS FOR DECISION

Senior Member Bernard J McCabe

28 November 2014

1. The Secretary of the Department of Social Services decided Ms Angelina Nicol and Mr Keith Abberton were members of a couple within the meaning of s 4 of the Social Security Act 1991 from 19 January 2005 to 13 October 2011. That is significant because members of a couple are generally paid social security benefits at a lower rate than single claimants, and members of a couple must provide details of their partner’s income and assets in order to assess whether they are eligible to receive benefits. Ms Nicol was paid benefits at the single rate and did not provide details of Mr Abberton’s income during the period under review. Indeed, she filled out Centrelink forms in which she expressly denied she was involved in a relationship with Mr Abberton even though (a) they lived under the same roof for much of the period under review and (b) Mr Abberton was the father of Ms Nicol’s daughter.

2. The Secretary decided to raise a debt against Ms Nicol after the Secretary concluded Ms Nicol and Mr Abberton were, in fact, members of a couple and that Ms Nicol was overpaid during the period under review. The Social Security Appeals Tribunal (“SSAT”) affirmed the decision. Ms Nicol has now asked this Tribunal to reconsider the matter.

3. I have concluded Ms Nicol is not a member of a couple, for reasons I will explain.

   THE LEGISLATION

4. I have already explained that a person who is a member of a couple is generally paid social security benefits at a lower rate than a single person. It follows it is important to examine how that concept is defined. Section 4(2)(b) deals with relationships where the individuals are not married to each other. That subsection sets out a number of conditions which must be met. Relevantly for present purposes, s 4(2)(b)(iii) says a person who is not married to another individual will nonetheless be a member of a couple if the Secretary is satisfied the two individuals are in a de facto relationship. (Before amendments to the Act in 2009, the expression marriage-like relationship was used instead of de facto relationship. Nothing turns on the distinction because both concepts are – for present purposes at least – defined in the same way in s 4(3).)

5. Section 4(3) is the key to this case. It sets out the criteria which a decision-maker must consider when attempting to characterise a particular relationship. I will address each criterion below but I should emphasise that the criteria are not intended to be used like a cook book or a shopping list. No single criterion is necessarily determinative. One must have regard to all aspects of the relationship and ask a common-sense question. In doing so, one must remember the point of the legislative requirement: members of a couple have an opportunity to pool their resources, which means they typically require less assistance than a single person who is forced to bear many of the same costs on his or her own. The Act is not making a moral or qualitative judgment about relationships, which are extraordinarily diverse. The distinction between different types of relationships might be a fine one, and relationships change over time. Not all relationships are happy.

6. The relationship between Ms Nicol and Mr Abberton defies easy characterisation. It began in around 2000 when Ms Nicol and Mr Abberton were working together at a private hospital. Mr Abberton was a supervisor. He and Ms Nicol began courting, according to Ms Nicol, but the relationship was not progressing quickly. Ms Nicol explained Mr Abberton lived at home and came from a conservative family. She said she initially thought the relationship might have some long term prospects but all that changed when she fell pregnant. She said Mr Abberton and his family cut her off. After her daughter was born in 2002, there was a custody dispute that was effectively settled in Ms Nicol’s favour in 2003. But Ms Nicol’s health was poor and she was struggling to look after her daughter. Mr Abberton was obliged to pay child support in the amount of around $800 per month. Mr Abberton’s mother suggested her son and Ms Nicol move in together. Ms Nicol surmised in her oral evidence that Mrs Abberton was hopeful they would become a conventional couple. Ms Nicol said she agreed to move in with Mr Abberton after discussions with friends and advisers who suggested Mr Abberton might be able to discharge his obligations with respect to child support indirectly by paying individual bills and expenses. Ms Nicol said she thought that might more easily be done if they were under the same roof – so she and her daughter moved into rented accommodation with Mr Abberton in January 2005. Ms Nicol also spoke of being hopeful that Mr Abberton and their daughter might develop a relationship.

7. Ms Nicol, her daughter and Mr Abberton lived in a number of rented properties together over the course of the next few years before the relationship – such as it was – ended in 2011. I note they were not living under the same roof for the entire time: there was a period in 2007 when Mr Abberton moved onto a new property and there was a delay of several months before Ms Nicol decided to move in. Even so, I am satisfied there was a pattern, if not an unbroken one, in which they moved about together.

8. As I will explain, there is evidence pointing in both directions. Some of the evidence the respondent relied on was supplied by Mr Abberton, who gave evidence before the SSAT. He was not available to give evidence and be questioned under oath at the hearing before me. That is a pity: his evidence would have been relevant. His absence makes it difficult to rely on his evidence where it contradicts that offered by Ms Nicol. Given Ms Nicol pointed out Mr Abberton experienced injuries in a car accident that may have impacted on his perception and recall, his untested evidence must be treated with particular caution. It is possible, for example, that Mr Abberton’s evidence was coloured by his own perceptions of the relationship. I have not had the opportunity to tease out those issues in his absence.

9. My conclusions are necessarily based on the documents provided and the evidence given by the applicant at the hearing. I will explain my findings in relation to each criterion and then address the ultimate question.

   The financial aspects of the relationship

10. I begin with the financial aspects of the relationship. Ms Nicol and Mr Abberton did not hold joint bank accounts or hold a credit card in the other person’s name. They did not jointly own any real estate or other assets. That is all accepted. Ms Nicol said she worked on a casual basis throughout the period under review; she had access to her own monies and she said she did not share them or pool them; Mr Abberton did not put his earnings into a pool either.

11. Ms Nicol said Mr Abberton agreed to meet certain costs she incurred as a way of satisfying his obligations with respect to child support. The arrangement changed over time, and appeared to be loose: at various times, Mr Abberton paid for some child care or educational expenses. But other expenses came under the arrangement as well from time to time: for example, there was an arrangement with respect to the car Ms Nicol purchased in late 2007 or early 2008. Mr Abberton’s name was provided to the financier: she says one way in which Mr Abberton discharged his child support obligations was to meet repayments on her vehicle. He also paid for the insurance on the vehicle. Ms Nicol said Mr Abberton was named as a driver of the vehicle when it became necessary for him to borrow the vehicle to transport their daughter. That arrangement came to an end when Mr Abberton had an accident in the vehicle. It was written off. (There was also car insurance taken out on Mr Abberton’s vehicle after 2008. The insurance policy was in both names. Ms Nicol said she knew nothing of that.)

12. Ms Nicol said she very occasionally borrowed money from Mr Abberton. She gave one example: he provided her with an advance on his credit card so she could convert her vehicle to gas. She said the money was promptly repaid. While there might have been other instances where Mr Abberton provided some sort of financial accommodation or paid for some items for their daughter, Ms Nicol said the monies were either repaid or counted towards satisfaction of Mr Abberton’s child support obligation.

13. The applicant said she and Mr Abberton shared household expenses on a 50:50 basis. She said she paid half the rent in the rented accommodation they shared between 2005 and 2007. (I was told Mr Abberton gave evidence at the SSAT hearing which was inconsistent with Ms Nicol’s evidence on this point, but Mr Abberton was not called to give evidence or be questioned on oath before me. In those circumstances, I am inclined to accept the applicant’s version of events to the extent of any conflict.) Her contribution towards the rent changed in 2008, not long after when she and her daughter moved into a house Mr Abberton had bought in his own name and out of his own resources on the Central Coast. Initially, Ms Nicol said she paid rent to Mr Abberton but she became aware he was not meeting his obligations. (It seems Mr Abberton may have experienced a period of diminished capacity as a consequence of injuries he sustained in the car accident that wrecked Ms Nicol’s car.) Ms Nicol said it was agreed she would not pay rent – but that made sense, she explained in her oral evidence, because Mr Abberton was no longer discharging his child support obligations by meeting the costs of repayments on her car.

14. I note the applicant nominated Mr Abberton as a beneficiary of her superannuation account which she opened in 2004 – before the period under review. Ms Nicol said she thought it was appropriate to mention Mr Abberton because it would fall to him to look after their daughter if anything happened to the applicant. That makes sense in light of the evidence from Ms Nicol that her own family were unlikely to play a role in looking after her daughter.

15. The respondent referred to a number of other joint arrangements, including internet and phone packages in joint names (Ms Nicol said she did not use the internet) and a number of insurance policies in both names. Ms Nicol was taken to some of those policies in cross-examination and she said she knew nothing about them. There was also the fact Ms Nicol signed an application for the first home owner’s grant. She said she did not read the document closely because she did not have her glasses and simply signed it when asked to do so as a favour.

16. The evidence in relation to this criterion is ambiguous. There is some mixing of finances and obligations in relation Ms Nicol’s car to be sure, but that takes on a different light if one accepts her proposition that Mr Abberton was providing assistance in discharge of his child support obligations. The occasional examples of financial accommodation – where an individual provides a short term loan or agrees to fund the purchase of goods or services consumed by the other – is explicable on the same basis. There was certainly no significant pooling of financial resources. I also accept Ms Nicol’s evidence to the effect that household expenses were allocated rather than shared, and that Mr Abberton’s contribution was adjusted to take into account his child support obligations. And yet there was some evidence that Ms Nicol allowed her name to be used on documents in a way that was consistent with her being a member of a couple – although it is possible her name was used more freely by Mr Abberton than she realised.

17. I am not satisfied the evidence relevant to this criterion strongly suggests Ms Nicol and Mr Abberton were members of a couple. I accept Ms Nicol derived a financial benefit in some general sense from the arrangement, and that Mr Abberton effectively provided her with support – but I also accept he was obliged to do that to a significant extent given his obligation to provide child support.

    The nature of the household

18. Ms Nicol explained that she and Mr Abberton did not share a bedroom at any stage. She said they always lived in three- or four-bedroom dwellings; she and her daughter always had bedrooms and a bathroom to themselves (although Ms Nicol said she often slept on a couch). There was inevitably some sharing of common areas but no more than one would expect of individuals sharing a home, she explained in her oral evidence.

19. Ms Nicol insisted in her evidence that she did not share household chores: she took care of the cooking, cleaning and washing for herself and her daughter. She did acknowledge she took over responsibility for doing some repairs and maintenance on the home Mr Abberton purchased after 2008, but those contributions were limited.

20. The applicant said Mr Abberton did not play any sort of active role in the care and supervision of their daughter. She gave evidence of one instance when she was suddenly admitted to hospital and Mr Abberton appeared reluctant to assume parental responsibilities. Ms Nicol made it clear that she was troubled by Mr Abberton’s apparent lack of commitment to playing a role in their daughter’s life. Ms Nicol said her daughter only had limited contact with Mr Abberton’s family. The applicant said she made all of the decisions relating to their daughter’s welfare.

21. Ms Nicol said she and her daughter led a separate existence to Mr Abberton. She said he led his own life, and they led theirs.

22. I do not think the evidence in relation to this criterion tends to suggest Ms Nicol was a member of a couple.

    The social aspects of the relationship

23. Ms Nicol said she and Mr Abberton rarely went out together, and did not present themselves as a couple in their social lives. They did not vacation together or jointly celebrate holidays like Christmas. She said their lives were quite separate.

24. The applicant did nominate Mr Abberton as her next of kin on several personnel forms provided to various employers. She pointed out she only did so because she was told she could not nominate her daughter, who was a minor, and it made sense to nominate Mr Abberton as an emergency contact if anything happened to her so he would know he had to look after their daughter. I note Mr Abberton also nominated the applicant as his next of kin on some documents tendered by the respondent, but it is harder to understand his motivation in doing so when he was not available to give evidence. I accept Ms Nicol identified herself as a spouse in the first homeowner’s grant application (although she says she did not read the document closely) and in the documentation relating to one of her superannuation funds.

25. The evidence in relation to this criterion is ambiguous. Ms Nicol’s evidence makes it clear that anyone who knew her and Mr Abberton was unlikely to have made the error of assuming they were a couple. She also pointed out that in a number of the forms where she was asked to define her marital status, she declined to describe herself one way or another. But Ms Nicol clearly did allow herself to be seen as a spouse when it suited her to do so, or when she did not care.

26. I do not think the evidence in relation to this criterion provides a strong indication that the applicant was a member of a couple.

    Any sexual relationship

27. Ms Nicol and Mr Abberton did not have an ongoing sexual relationship following the birth of their daughter. Ms Nicol did not appear to be dating anyone else although she suggested Mr Abberton did have other relationships.

28. The evidence in relation to this criterion tends to suggest the applicant was not a member of a couple.

    The nature of the people’s commitment to each other

29. The applicant’s relationship with Mr Abberton – such as it was – persisted over a number of years. They lived together for almost six years, between 2005 and 2011, with only a short break in late 2007. The members of the household moved together between a number of different properties over that time. Ms Nicol said the relationship was a temporary arrangement, but I accept it persisted for some time.

30. Ms Nicol accepts she stayed with Mr Abberton because it suited her in light of her financial circumstances. She insisted in her evidence that she needed financial assistance from Mr Abberton to raise their daughter, and that living under the one roof was a convenient way of ensuring he met his child support obligations, even if only indirectly. She gave evidence that she had been ill and was forced to live in a refuge before she moved into Mr Abberton’s house; she said she was worried their daughter would be taken into care if stable accommodation were not available. She also suggested she thought it was important to maintain a relationship with Mr Abberton because, for better or worse, he was a parent of their daughter.

31. The applicant described a household in which she did not receive any emotional support or companionship from Mr Abberton. She says she consistently told Centrelink she was not a member of a couple because that is how she honestly saw the situation. It is unclear how Mr Abberton regarded the relationship; Ms Nicol’s evidence, which may be coloured, suggests he only entered into the arrangement because he was pressured by his mother, and because it suited him financially.

32. Ms Nicol’s evidence suggests she had a commitment to her daughter, and that Mr Abberton’s commitment to the child – which was effectively the sole basis of the relationship between Ms Nicol and Mr Abberton – was rather weaker.

33. Without hearing from Mr Abberton, I am satisfied the evidence in relation to this criterion does not clearly and unequivocally suggest Ms Nicol was a member of a couple. Indeed, the evidence, on balance, points to the opposite conclusion.

    CONCLUSION

34. When I have regard to all of the evidence I have discussed and make an assessment of the totality of the relationship, I am satisfied Ms Nicol was not a member of a couple. The relationship is certainly an unconventional one. I suspect the parties did not give a lot of thought to what they were doing: they just found themselves together as a consequence of circumstances, most obviously the need to take care of their daughter. There were certainly aspects of the relationship that resembled that which one would expect to see amongst individuals in a de facto or marriage-like relationship; but equally there were aspects that clearly signalled this was a convenient, pragmatic relationship between two people thrown together unexpectedly.

35. The decision under review should be set aside. I decide in substitution that the applicant was not a member of a couple from 19 January 2005 to 13 October 2011.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

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Associate

Dated 28 November 2014

Date of hearing	11 November 2014
Applicant	In person
Solicitors for the Respondent	Mr B Dean, Australian Government Solicitor