Archibald and Department of Family and Community Services - [2001] AATA 116

DECISION AND REASONS FOR DECISION [2001] AATA 116

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1670

GENERAL ADMINISTRATIVE DIVISION       )
           Re      HAROLD ARCHIBALD
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Dr JD Campbell

Date16 February 2001
PlaceWollongong

Decision The decision under review is affirmed.

[Sgd] Dr JD Campbell
Member
CATCHWORDS:
Social Security – disability support pension – whether member of a couple - separated under one roof – assessment of living arrangements

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

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
In the Marriage of Pavey (1976) 25 FLR 450
Re Saracino and Secretary, Department of Family and Community Services (AAT 3838, 16 October 1987)
Re Kaloudis and Department of Social Security (1996) 2 SSR 109b
Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497

REASONS FOR DECISION

This is an application by Mr Harold Archibald ("the Applicant") for review of a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") made on 23 June 2000, to pay disability support pension to the Applicant at the partnered rate on the basis that he was a member of a couple. Both an authorised review officer of the Respondent and the Social Security Appeals Tribunal ("SSAT") subsequently affirmed this decision. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 31 October 2000.
The hearing of the application for review was held in Wollongong on 7 February 2001. The Applicant was self-represented and the Respondent was represented by Cheryl Collis of Centrelink.
The Applicant provided oral evidence. The following written material was also placed in evidence before the Tribunal:

Material prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T16, pp 1-55
Respondent's statement of facts and contentions dated 5 February 2001 Exhibit R1
Copy of 'address history' screen from Centrelink computer records Exhibit R2

background

The Applicant was married on 12 January 1980 and has been receiving disability support pension at the married rate since 22 August 1996. On 16 June 2000 the Applicant and his wife lodged 'assessment of living arrangements – separated under one roof' forms with Centrelink. However, the Centrelink delegate determined that the Applicant's disability support pension should continue to be paid at the married rate because he was considered to be a member of a couple for the purposes of section 4 of the Social Security Act 1991. This decision was affirmed by an authorised review officer on 28 July 2000, and again by the SSAT on 16 October 2000. On 27 October 2000 the Applicant moved out of the matrimonial home and has been paid at the single rate of pension since 9 November 2000.

issues

The sole issue before the Tribunal is whether the Applicant was a member of a couple for the purposes of the Social Security Act 1991, between the dates of 15 June 2000 and 9 November 2000. This involves an assessment of the Applicant's living arrangements during that period.

legislation

The relevant legislation is the Social Security Act 1991 ("the Act") and in particular section 4 which provides:

"Member of a couple—general
4(2) Subject to subsection (3), 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 (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
…
Member of a couple—criteria for forming opinion about relationship
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (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 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.

4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
…"

oral evidence of the applicant

The Applicant stated that after he and his wife married they bought a property together in Townsville, and later bought a second property on the Gold Coast. Some time after, those properties were sold due to a business venture which went bankrupt. Since moving to Wollongong, the Applicant and his wife have lived in rented accommodation. Their joint assets included furniture and other home contents, a car which is now unregistered, and joint bank accounts.
The Applicant's relationship with his wife started to decline after he was involved in a car accident, where he suffered neck and back injuries. He had no money at the time, his wife was "doing everything" and he felt like a "second class citizen in his own home". His wife paid for food, rent and most expenses, as his income at the partnered rate from Centrelink was approximately $119 per fortnight. His financial situation did not improve after a compensation settlement in 1998 or 1999, as the majority of the money went to his solicitor. He is currently trying to identify why this occurred and recover the money, but to date has been unsuccessful.
Prior to the accident, the Applicant worked for the Illawarra Medical Laboratories as a courier. He considered himself to be successful in this position, developing a new run from Wollongong to Sydney. His wife worked in pathology as a technical officer, a field which she had worked in for approximately 20 years, and which she continues to do.
The Applicant perceives that his marriage was at an end approximately 18 months ago. It was then that he and his wife "really stopped caring about each other", and started to lead their own lives. Their sexual relationship ceased "a very long time ago", after the accident. From about 13 months ago, the Applicant and his wife no longer had joint bank accounts or access to each others cash or credit. The Applicant stated that he currently has a debt of approximately $4900 on his credit card, which he is attempting to repay.
During the period in which the Applicant and his wife were separated but remained living together, they were "totally living separately" to each other. The Applicant did not move out of the marital home as he had nowhere else to go, and no assistance. He did however wish to leave, due to constant arguments and what had become an unhappy home life.
The Applicant stated that it has been "years" since he and his wife have gone out as a couple, he could not recall the last time. He stated that his wife would go out every Friday night, he did not know where she went. He always went out "with the boys" on Sundays, usually to play cricket and "have a drink". They did not attend social events together, and took the children to sporting events separately. Last Christmas was spent apart, the Applicant camped with some friends, without his children. The Applicant stated that most close friends know of the separation, but some acquaintances do not.
With regards to divorce, the Applicant stated that during the period in issue, he still held out hope of a reconciliation. He added, however, that even now that they are living apart he still holds on to the hope of reconciling. He admitted that this is highly unlikely, but that he will "never accept that it is totally gone". Further, the Applicant added that he believes it is reasonable that there should be some time during a separation where divorce has not yet been addressed, divorce being the last resort.
The Applicant does not currently provide any money to the household, and Child Support forms are in the process of being completed. With regard to his current perception of this relationship, the Applicant stated that he is not divorced, but not single, so would still classify himself as being married.
In cross examination by the Respondent, the Applicant conceded that there are arguments in most marriages, but stated that his wife's attitude towards him has changed. The Respondent submitted that during the period in issue all the written evidence indicates that the Applicant's wife still undertook all of the household tasks. The Applicant stated that this was not the case, although there was some overlap in cleaning duties, and he might cook her a meal if she worked late. There was "no set arrangement" for these tasks.
The Applicant agreed that the family commenced living in an apartment from 25 May 1999, and stated that relations with his wife were difficult at this time. The Respondent stated that the family moved again in July 2000 and the Applicant and his wife still had a joint lease at this new address, suggesting reasonable speaking terms at this time. The Applicant disagreed with this statement, and told the Tribunal that this situation occurred for the sake of the family only. The Applicant now lives alone in a one bedroom unit within very close range of his family, so that he can receive the pension and see his children.
The Applicant stated that he and his wife do not discuss the parenting of their children, and do not attend the school or parent/teacher evenings together. The Applicant does not visit his wife's place of residence. Their 18 and 19 year old daughters do most of the babysitting, and the children visit him at his home.
The Respondent referred to a statement made by the Applicant's wife with regard to the joint use of visa cards. The Applicant stated that he can't use her credit card, nor can she use his, and he doesn't know why she made that statement.
The Applicant informed the Tribunal that he made a will while he was in the army, with his wife as his next of kin. He had assumed that this will is still current, but he stated that he has no assets now so the will is "the last thing on my mind".
The Applicant stated that he declined to provide to Centrelink statements from relatives and friends with regard to his separation, as he believes that the details of the separation and his dealings with Centrelink are "no-one's business".
The Applicant said that he is not considering divorcing his wife at this point in time, as he still holds out hope for a future reconciliation.

submissions

In a statement of facts and contentions (Exhibit R1), the Respondent reiterated the submission of the original decision maker who stated:
"Although the couple appear to be unhappy in their present situation, it does not appear as though the marriage has broken down. Harold is still living there to be with the children. Neither are filing for divorce for their children's sake."
The Respondent referred to section 4(2) of the Act, and further agreed with the decision of the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164. This case held that the decision on whether a couple are living separately and apart should not result from the mechanical application of a checklist, but rather all the circumstances of the relationship must be carefully considered.
With regard to the financial aspects of the relationship, the Respondent submitted that the Applicant's wife paid all of the rent and expenses of the household and that both were authorised to use the other's credit card, amounting to a significant level of financial support. The Respondent contended that in marriages where the relationship has totally broken down, the parties do not continue to provide financial support to one another, unless there is a maintenance order in force. Rather, financial independence is usually the first step the parties take in order to distance themselves from each other.
Turning to the nature of the household, the Respondent submitted that despite the relationship breaking down after the accident some five years ago, the couple have continued to share residences. The Applicant's wife did all of the cooking for the household, and most of the cleaning and washing. The Applicant was home for the children when they finished school and assisted them with their homework. The Respondent cited the Full Family Court's decision In the Marriage of Pavey (1976) 25 FLR 450, which considered that "the nurture and support of the children of the marriage" was a constituent element of the marital relationship.
The Respondent referred to advice to the SSAT by the Applicant's wife that she did not care one way or the other about the Applicant's appeal. The Respondent cited Re Kaloudis and Secretary, Department of Social Security (1996) 2 SSR 109b and submitted that the lack of communication between a couple does not necessarily show that a couple are living separately and apart and that the relationship has broken down. The Respondent further submitted that undue weight should not be placed on the applicant's assertion that his wife goes out on Friday nights, and referred to T5, p29 where the couple "acknowledge…that they attend their son's footy games together". (The Tribunal notes that the Applicant in fact states "we sometimes go to my son's footy, often by different means".)
The Respondent made reference to the SSAT decision which included evidence of the Applicant that his wife refused to pick him up from the hospital after an accident on his push bike. The Respondent offered purely speculative reasons why this may have been the case, and added that the level of commitment to each other need not be shared by both parties, as per the decision in Re Saracino and Secretary, Department of Family and Community Services (AAT 3838, 16 October 1987).
The Respondent stated that both parties deny a sexual relationship, however the Applicant keeps all of his clothes in the main bedroom. The Respondent contended that the absence of a sexual relationship is not of itself determinative of the absence of a marriage-like relationship.
With regard to the overall nature of the parties commitment to one another the Respondent submitted that various statements of the couple suggest an interdependence between them, with neither willing to acknowledge the complete destruction of the family unit. Such statements include the Applicant stating that he would hate the thought of divorce, and the Applicant's wife stating that she was not sure who she should see to do this. The Respondent contended that "it is quite obvious that one sees a lawyer if contemplating divorce". Furthermore, neither party answered the question "when did the separation occur?".
At the hearing, the Respondent submitted that the Applicant's relationship was an unhappy one but at the period in issue it could not be classified into a category of "complete destruction". There were indicators of a "neutral dependence" demonstrated by joint finances, cleaning duties, continued cohabitation, reluctance to file for divorce, a shared bond in relation to the children, hope for reconciliation and the latest residence of the Applicant being within close proximity to his family. The Respondent stated that although the Applicant's wife has chosen to remain aloof from these proceedings, she too appears reluctant to sever ties with the Applicant, which she has shown through her continued support of him during the period in issue.
With regard to the Respondent's statement of facts and contentions, the Applicant stated that his wife gives him no financial support now, nor did she during the period when he claimed the single rate of pension. He stated that he didn't see a lawyer with regard to the separation as he didn't know that he had to, and hadn't thought of it.
With regard to the Respondent's oral submissions at the hearing, the Applicant stated that his wife supported him out of obligation because he had no money, whereas she earned approximately $450 net per week.

consideration and findings

In taking into account all of the material before it and the oral evidence provided at the hearing, the Tribunal makes the following findings with regard to the checklist for forming an opinion about a relationship at subsection 4(3) of the Act:
(a)      The financial aspects of the relationship:
Between 15 June and 9 November 2000, the Applicant and his wife no longer owned any real estate or major assets together, due to the bankruptcy of an earlier business venture. There was no longer a major joint financial commitment, however, day to day finances were approached jointly. The Applicant's wife paid for rent and expenses, with the Applicant contributing for electricity and telephone only when possible, due to his substantially reduced income.
(b)      The nature of the household:
The living arrangements of the Applicant and his wife during the period in issue involved joint access to the living areas and utilities of the house, but separate sleeping arrangements. They continued to share the use of household goods and furniture. The Applicant's wife did the majority of cooking for the family, with the Applicant preparing meals for the family when his wife worked. The Applicant and his wife both cared for the children, the Applicant stating that he was home for the children when they finished school and he assisted them with their homework.
(c)       The social aspects of the relationship:
It seems clear to the Tribunal that the Applicant and his wife have not interacted socially for some time. Most close friends of the couple know of the separation and the Applicant and his wife lead separate social lives. As noted above, the Applicant and his wife sometimes both attended their son's football games, but "by different means".
(d)      Any sexual relationship between the people:
The Applicant told the Tribunal that there is no communication between himself and his wife, and no sexual relationship exists.
(e)      The nature of the people's commitment to each other:
The Applicant and his wife had been married for approximately 20 years and have four children. However, it seems clear to the Tribunal that by the period in question, emotional support between the two had significantly waned. The Applicant and his wife considered themselves to be separated. The Applicant's wife stated that she is not likely to reconcile, although the Applicant stated that it was "too early to tell." At the hearing, the Applicant stated that currently he would still classify himself as married.

The Tribunal acknowledges that this checklist is not exhaustive, and turns to consider the circumstances of the relationship as a whole. In doing so, the Tribunal concentrates on the ways that the relationship had changed during the alleged period of separation. It would appear to the Tribunal that the Applicant's relationship was clearly breaking down during the period in issue and the Tribunal acknowledges the difficult situation in which the Applicant found himself. However, the continued financial support from his wife, the continued joint responsibility for the care of the children and to a lesser extent for household tasks and expenses, and the lack of certainty with regards to attempts to reconcile, all suggest the continuance of a marriage-like relationship, albeit strained. In considering the motives of the Applicant in remaining in the family home, the Tribunal acknowledges that to some extent his financial circumstances made it difficult for him to leave. However, the Tribunal finds that the predominant reason for remaining was the mutual purpose of caring for the children and maintaining the family unit, with the tenuous hope of eventual reconciliation.
These issues when considered individually may not constitute a major commitment to each other, however the Tribunal considers that they must be viewed in their entirety and in these respects the relationship continued to be marriage-like. It appears to the Tribunal that until the time when the Applicant ceased to reside in the family home, the inter-dependence within the relationship continued to exist. The apparent absence of social endeavour together, as well as the lack of a sexual relationship and a decline in emotional support, do not in the Tribunal's opinion, satisfy the requirement of subsection 4(2)(a) of the Act, for the Applicant and his wife to be living separately and apart from each other on a permanent or indefinite basis.

determination

The Tribunal determines that the decision under review be affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell.
Signed:         .....................................................................................
  Associate
Date of Hearing  7 February 2001
Date of Decision  16 February 2001
Representative for the Applicant              Self-represented
Representative for the Respondent Cheryl Collis