Bartram and Bartram (Child support)

[2024] AATA 1885

Bartram and Bartram (Child support) [2024] AATA 1885 (18 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026885

APPLICANT:  Mrs Bartram

OTHER PARTIES:  Child Support Registrar

Mr Bartram

TRIBUNAL:  Member J Nalpantidis                 

DECISION DATE:  18 March 2024

DECISION:

The Tribunal affirmed the decision.

CATCHWORDS

CHILD SUPPORT – terminating event and suspension of assessment – notification of reconciliation not accepted and assessment not suspended – separation under one roof, then living at different addresses with separate finances, assessed payments made and care changes reported – communications, joint activities, occasional sexual relations, pregnancy, mother’s travel and second child born overseas – objective assessment of relationship – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. The issue in this case is whether Services Australia – Child Support (Child Support) was correct in not suspending the child support assessment for [the child] (born in January 2015), from 24 December 2018, on the basis that Mrs Bartram and Mr Bartram had not reconciled on this date.

2. Mrs Bartram and Mr Bartram are the parents of the child.  A child support assessment has been in place between Mrs Bartram and Mr Bartram for the child since 6 February 2018, with the date of marriage listed as 28 April 2012 and the separation date listed as 15 January 2018. By separate letters dated 2 March 2018, Mrs Bartram and Mr Bartram were notified by Child Support that Mrs Bartram’s child support application was accepted.

3. On 1 January 2023, Mrs Bartram provided information that her marriage with Mr Bartram had not irretrievably broken down and the parties reconciled in December 2018.  On 9 January 2023, Mrs Bartram advised that she and Mrs Bartram reconciled on 24 December 2018, including living together in a genuine domestic relationship.

4. On 8 February 2023, an employee of Child Support decided that the parties had not genuinely reconciled at any stage of child support registration, to the end of the liability, the assessment should not be suspended and that a terminating event has not occurred.

5. On 16 March 2023, Mrs Bartram objected to this decision. 

6. On 8 September 2023, an objections officer of Child Support considered and disallowed the objection, which means the original decision not to suspend the child support assessment for the child from 24 December 2018 on the basis of a reconciliation of the parties, was not changed.  The objections officer was not satisfied the parties reconciled on 24 December 2018, as claimed by Mrs Bartram.  There was therefore no change to the administrative child support assessment.

7. On 9 October 2023, Mrs Bartram applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of Child Support’s decision. 

8. The Tribunal hearing was conducted on 15 March 2024, when the parties gave oral evidence on affirmation by the parties; Mrs Bartram attended in person and Mr Bartram participated by MS Teams audio.

9. At the hearing the Tribunal had before it documents provided by the Agency (1 to 532); this material had been exchanged between the parties prior to the hearing.  The parties confirmed receipt of the documents with the Tribunal. 

10. On 17 March 2024 Mrs Bartram provided further submissions.  On 18 March 2024, the Tribunal determined the matter.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act), the Child Support (Registration and Collection) Act 1988 and the Social Security Act 1991 (the Act).

2. Subsection 12(5) of the Assessment Act provides that a terminating event happens in relation to a child and the child’s parents if the parents become members of the same couple for a period of 6 months or more.

3. Section 150E of the Assessment Act provides that a suspension determination must be made that child support is not payable for a child where the parties become members of the same couple.

   (1)  The Registrar must make a determination (a suspension determination ) that child support is not payable for a child by a liable parent to the other parent of the child if:

   (a)  the Registrar is notified, or otherwise becomes aware, that the parents have become members of the same couple; and

   (b)  the Registrar is satisfied that the parents have become members of the same couple.

4. The Child Support Guide at 2.10.1 addresses the issue of “Suspension of liability to pay child support when parents reconcile”:

   If the Registrar is satisfied that 2 separated parents have reconciled, payment of child support will be suspended (unless the child support is payable to a non-parent carer). If, however, the parents separate again within 6 months, then either parent can reinstate the assessment without having to make a new application for an administrative assessment of child support. Where parents remain reconciled for a period of 6 months or more, the administrative assessment will end.

5. Section 5 of the Assessment Act provides:

   "member of a couple" means:

   (a)  a person who is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis; or

   (b)  a person who is living with another person as the partner of the other person on a genuine domestic basis although not legally married to the other person; or

   (c) a person whose relationship with another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901as a kind of relationship prescribed for the purposes of that section, and is not living separately and apart from the other person on a permanent or indefinite basis.

6. The Child Support Guide at part 2.1.1 states:

Living together

A parent or non-parent carer may not apply for a child support assessment if they are living as the partner of the other parent, or a parent, of the child on a genuine domestic basis.

The factors to be considered (Social Security Guide 2.2.5.30) in establishing whether people are living together as partners on a genuine domestic basis are:

·financial aspects of the relationship

·nature of the household

·social aspects of the relationship

·presence or absence of a sexual relationship, and

·nature of the commitment.

In addition, a person cannot live with another person as their partner on a 'genuine domestic basis' if they are aged under 16 years. This is because a person is living with another person as their partner on a genuine domestic basis if the relationship has the characteristics of marriage (FO v HAF [2006] QCA 555; Re Kennison and Secretary, Department of Social Security (1985) 8 ALD 560). To have the characteristics of marriage, the persons must be at least 16 years old, which refers to a person's capacity to marry pursuant to the Marriage Act 1961 (Cth).

Lastly, if parents, or a parent and non-parent carer, are legally separated but are still residing in the home they shared, they are not considered to be living together as partners on a genuine domestic basis. More than a physical separation within the home is required. It involves one or both parties forming the intention to end the relationship and acting upon that intention (including communication of the intention to the other party).

1. The issue for the Tribunal to determine is whether Mrs Bartram and Mr Bartram were members of a couple from 24 December 2018, for the purposes of child support.

2. Mrs Bartram gave evidence that the parties separated in February 2018 and then reconciled on 24 December 2018.  The Tribunal must therefore determine whether Mrs Bartram and Mr Bartram were living separately and apart from each other on a permanent or indefinite basis.

3. The Child Support Guide references the Social Security Guide in relation to the factors that should be considered when considering whether people are living together as partners on a genuine domestic basis. The five factors that must be considered when forming an opinion about a relationship between two people and whether they are members of a couple are set out in subsection 4(3) of the Social Security Act 1991. Subsection 4(3) of the Social Security Act 1991 provides:

   (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.

1. Following discussions with the parties and consideration of the documentation provided by the parties, the original decision-maker stated (unedited):

   RP (Mrs Bartram) provided written documentation relating to potential reconciliation of couple from 24/12/2018 and sought to have decision made as to whether a terminating event occurred.

   RP (Mrs Bartram) also provided verbal comments as to the reasons why they believed the CS assesment should be ended and declared that still member of a couple since 24/12/2018

   RP information included that despite living at separate addresses (PP in [Suburb 1] / RP and child in [Suburb 2])

   Both parties resumed a marriage like relationship, despite an assesment being in effect, payments being made from PP to CS and that several care changes were reported and confirmed by both parties throughout duration of case. RP sought to have case ended and willing to repay any funds.

   PP information provided verbal comments as to the relationship status of the parties, including that the parties for convenience of the child, staying over at [Suburb 1] property when not attending kindergarten and back to [Suburb 2] when in school term. PP coinfirmed that separte rooms where utilised during RP stay however on occassion relations occurred however not intended to result in pregnancy. PP stated that he was not made aware of pregnancy until RP was 4-5 months pregnant and then travelled overseas to [Country 1] (without notifying PP of reason or duration for birth of child in June 2020. PP filed for divorce in 2022 and RP lodged paers opposing divorce on grounds of Service and PP ceased cour action.

   PP confirmed consider that parties separated in Jan 2018 and have not resumed being a memeber of a couple at any time.

   I am satisfied, on balance, that given the timeframes, explanations and actions undertaken (RP stated they committed fraud on Gvmt when stating that they had separated from other parent) and now wished to withdraw from thoses statements (covering 2018 until 2022 with excess of $80k of CS payments made) that the customers have NOT genuinely reconciled at any stage of CS registration to end date of liability.

   I am satisfied that the assesment should NOT be suspended and that a terminating event has not occurred.

2. After taking detailed direct evidence from the parties, and reviewing the material presented by the parties, the objections officer was not satisfied the parties reconciled on 24 December 2018, as claimed by Mrs Bartram.  The objections officer stated:

   Mrs Bartram and Mr Bartram both discuss a subsequent pregnancy and birth of [Child 2] on 9 June 2020, however we do not consider the birth of more children after parents separate to be sufficient on its own to establish whether the parents were reconciled or not.

   In the written statement completed by Mr Bartram, he details Mrs Bartram returning to Australia from [Country 1] in late 2017 without [the child] as being the start of their separation in 2018. Mr Bartram advises he and Mrs Bartram lived separated under the same roof for a period of time in [Suburb 2], until Mrs Bartram moved out with [the child] to her rented townhouse in [Suburb 2]. He later moved to [Suburb 1] to be closer to work.

   Mr Bartram advises Mrs Bartram initially made it difficult for him to see [the child], and later on, he had care of [the child] every second weekend, where on occasion, Mrs Bartram would also stay for a night or two. Mr Bartram advised whilst the parents occasionally engaged in sexual intercourse, he made it clear to Mrs Bartram he did not wish to have another child, as well as not getting back into a relationship with Mrs Bartram.

   Mr Bartram advised he was unaware Mrs Bartram fell pregnant until she was about five or six months pregnant. After he found out however, he offered for Mrs Bartram to move in with him so he can assist with [the child] and help her during the pregnancy. Mr Bartram said this was not a reconciliation.

   Mr Bartram said after Mrs Bartram moved in with him at [Suburb 1], she planned to depart for [Country 1], which was during the COVID-19 pandemic. [Mr Bartram] said Mrs Bartram subsequently left for [Country 1] with [the child] and their unborn [Child 2] in May 2020, with Mrs Bartram being about eight months pregnant at this time.

   Mrs Bartram said he only found out two weeks later that Mrs Bartram had left. He then had one video call with Mrs Bartram and [the child] a week after that, and this was the last time he spoke with Mrs Bartram and [the child]. Mrs Bartram said he sought legal advice regarding the return of his children under the Haig Convention.

   Mr Bartram said he filed for divorce in September 2022 after engaging a layer in September 2021, but needed to withdraw his application as there where inconsistencies that he needed to rectify. Mrs Bartram states he has not seen his [Child 2] at all, and has not seen Mrs Bartram and [the child] since May 2020.

   In Mrs Bartram`s letter of objection, she claims she had to work hard for one and a half years to fall pregnant, including limiting the amount of alcohol Mr Bartram consumed on the dates conception was possible. Mrs Bartram states this could not have been done without Mr Bartram`s knowledge and agreement, and maintains the parents reconciled on 24 December 2018 until at least February 2022, when Mr Bartram filed for divorce. Mrs Bartram states she does not however remember when Mr Bartram first announced it to her, perhaps late 2021.

   In the Affidavit completed by Mrs Bartram on 16 January 2023, she stated Mr Bartram initiated the separation on 20 January 2018, and that she never had any plans to leave him, as divorce was a shameful thing for her. Mrs Bartram acknowledged the parents were living separately under the same roof until July 2018 when she moved into her own unit. Mr Bartram assisted with buying her and [the child] beds and mattresses, and assisted in their assembly. Mrs Bartram states she and Mr Bartram continued to see each other every day, taking turns picking up [the child].

   Mrs Bartram states in December 2018, despite the separation, Mr Bartram came to terms with needing to compromise and be softer on her, and on the evening of 24 December 2018, he invited her back to his bed, which she accepted. Mrs Bartram said they spent the Christmas and New Year period like any other regular couple.

   Mrs Bartram said the only reason she kept the residence at [Suburb 2] was for work, and that she spent about three to four nights a week there as it was impossible driving 140kms (there and back) every day in traffic. Mrs Bartram said despite the parents being close again, they were on a separate budget.

   Mrs Bartram said on a few occasions, she was short of money for expenses like a new child car seat, rent or registration. She asked Mr Bartram to help but he would become fretful and hesitated. Sometimes he would help partially, saying that he was already paying child support and it should be enough.

   CBA bank transfers to Mrs Bartram were all prior to the separation in January 2018, with the exception of $50 transferred to her by Mr Bartram on 13 March 2018 for fuel`.

   In an email sent to Mrs Bartram by Mr Bartram on 24 January 2018, he asks her to initiate the separation process with Centrelink, and matters they need to discuss including shared responsibility for [the child], living arrangements and other expenses. In an email sent to Mrs Bartram by Mr Bartram on 16 March 2018, he continues to discuss child support and other expenses.

   Within the Child Support Report Fraud form submitted by Mrs Bartram as dated 1 January 2023, she states she reconciled with Mr Bartram in December 2018 however failed to report the reconciliation as she was never allowed access to family income or assets and it was the only way to get by.

   The Court Notice (for divorce) dated 19 January 2023 notes on 5 September 2022, a divorce order was granted on the application of Mr Bartram after satisfying the parties separated on 5 March 2018. Mrs Bartram denied the proposition that the marriage was broken saying they reconciled later that year, with evidence suggesting the relationship continued albeit occupying separate homes for convenience.

   For various reasons, there was a discontinuance of the divorce application, however the divorce order remained in place, but not final, and therefore it was unnecessary to consider Mrs Bartram`s evidence.

   Due to the quality of the document received, we are unable to determine the date the message exchange took place between Mrs Bartram and Mr Bartram`. The message exchange simply discusses Mr Bartram`s dissatisfaction with how Mr Bartram manages finances.

   Finally, Mrs Bartram provided us with messages between the parents. These date back to June 2017. With the parents in agreement they at least initially separated in January 2018, we will only consider messages relevant to the period in question. We also note, due to the quality of some of the messages received, some messages and/or the dates they were sent are ineligible.

   Mrs Bartram and Mr Bartram discuss matters including [the child]`s kindergarten fees (March 2018), child support (April/May 2018), Child Care Subsidy (May 2018), Mrs Bartram making Mr Bartram a cake for his birthday (May 2018), Mrs Bartram using Mr Bartram`s bank account for Telstra (July 2018), discuss dinner (July 2018), cleaning/vacating of the property (October 2018), Mr Bartram asking Mrs Bartram when she would be coming over (December 2018).

   In January 2019, Mrs Bartram and Mr Bartram talk about Mrs Bartram walking dogs. Mrs Bartram states [Name] is happy. I think he is going to announce he is moving in with me after his mum returns . It appears that [Name] however may be a dog, but it is noted Mrs Bartram references moving in with me , not us`.

   In April 2019, Mrs Bartram tells Mr Bartram they were not coming over the following weekend due to [the child]`s immunisations, to which Mr Bartram responds he was looking forward to having them over. Later messages sent in April are of videos (presumably) of [the child] learning to ride his bike, and Mrs Bartram discussing needing to do a pre-sale clean of [Suburb 3]. Mrs Bartram also references mess to clean up after waking up late, but that it was not much to clean up only my bed .

   On 1 May 2019, Mrs Bartram asks Mr Bartram to come over. Mr Bartram responds the next day advising he is unable to as he has work on the Saturday. On 3, 4 and 5 May 2019, various messages with photographs are sent showing a birthday is being celebrated, with Mr Bartram thanking Mrs Bartram for the nice weekend on 6 May 2019. On Mother`s Day 12 May 2019, Mr Bartram asks Mrs Bartram where he was to drop [the child] back to.

   Mrs Bartram sends Mr Bartram more photos on 16 June 2019. Mr Bartram makes references to him being missing. Mrs Bartram tells him to come over, but Mr Bartram responds, Too tired .

   On 2 July 2019, a photo is sent of a sleeping man and child (presumably Mr Bartram and [the child]) sharing a bed. This was sent by Mr Bartram to Mrs Bartram and is captioned Good looking guys in your bed .

   The evidence shows Mrs Bartram and Mr Bartram maintained somewhat of a relationship post their separation in January 2018, likely including that of a sexual nature, however the evidence does not support the parents resumed living together in a genuine domestic relationship, nor have we been satisfied the parents became members of the same couple from December 2018.

   This is supported by the fact that Mrs Bartram and Mr Bartram maintained separated residences, of which they were individually financially responsible for, albeit spending some events/weekends together on occasion. The messages presented between Mrs Bartram and Mr Bartram are merely general discussions had between parents of a child, not those of their relationship status.

   Mr Bartram acknowledges Mrs Bartram moved back into a room in his house for a period of time as she was struggling, and says at times they were intimate, however maintains the parents did not reconcile.

   Furthermore, there have been various times the parents have discussed going over to the other parent`s residence, including Mrs Bartram referencing moving in with me ([Name] the dog?), waking up late but that it was not much to clean up only my bed , and the picture sent to Mrs Bartram by Mr Bartram which was captioned Good looking guys in your bed .

   We have therefore made the decision not to suspend the child support preassessment for [the child] from 24 December 2018, as we have not been satisfied Mrs Bartram and Mr Bartram reconciled on this date.

   Consequently, the assessment for [the child] will not end on 24 December 2018.

The evidence before the Tribunal

Mrs Bartram’s evidence

1. Mrs Bartram referred to her application to the Tribunal about committing a fraud.  She is telling the truth and understands that by conceding that she reconciled with her husband on 24 December 2018, there may be adverse consequences for her in relation to child support, recovery of parenting payment single and child care subsidy.  She acknowledged that she did not have an intimate life with her husband for seven months from February 2018, and this re-started in December 2018 when they had a full family life. 

2. Mrs Bartram gave evidence that her intimacy with Mr Bartram ended in January 2020 and she was eight months pregnant when she went to her home country of [Country 1] in May 2020.  She conceded that her husband considered they were separated but in her view they were not.  She simply could not return to Australia due to COVID travel restrictions. Her intention was to return to Australia in October 2020 but ultimately she returned in September 2022.

3. Mrs Bartram told the Tribunal Mr Bartram contributed practically no financial support on their new born child; Ms Bartram gave evidence she was independent financially.  She continued to live in [Suburb 2] in a rented room to operate her [business] while Mr Bartram lived in [Suburb 1].  It was a long distance for her to travel to [Suburb 1].  They each met their individual household expenses. Mrs Bartram told the Tribunal they held no joint financial accounts and she received no financial support from Mr Bartram.  She asked for financial help from Mr Bartram in relation to her rent and on one or two occasions he contributed to her gas bills.  She visited Mr Bartram in [Suburb 1] from time to time and sometimes did shopping on the way and she would cook a meal they shared.   

4. Mrs Bartram contends they remained married and not separated and referred to court proceedings commenced by Mr Bartram to finalise their divorce which he subsequently withdrew in January 2023.

5. Mrs Bartram told the Tribunal she is currently homeless and lives in her car.  She said that it is normal behaviour from Mr Bartram to not assist her.  She is prepared to provide him with support but he is not prepared to do the same for her.

6. She said that her two children continue to live with her mother overseas and they have a stable life.  She provides for them, transferring all her earnings to her mother in [Country 1]; approximately $4,500 per month.   

7. Mrs Bartram gave evidence that she does not make joint decisions with Mr Bartram in relation to the children’s care and welfare; there is no communication between them but she still considers herself his wife.  Mrs Bartram told the Tribunal Mr Bartram sees things differently and she is not sure what he thinks about their relationship.  She accepts that he does not have the same commitment to the relationship as she does.  She cannot say if this situation is temporary or a punishment for her. 

8. Mrs Bartram told the Tribunal the child support assessment was registered in February 2018 and her child support ended in November 2023 because Child Support assessed the children were not in her care.  Albeit the children being outside of Australia, she disputes that they are not in her care and contends they continue to be in her financial care.  She has provided evidence about this to Child Support which they did not accept.  Mrs Bartram told the Tribunal that prior to November 2023, she received child support for their eldest child from February 2018. 

9. Mrs Bartram referred the Tribunal to the evidence she provided to Child Support, including evidence about her family life with Mr Bartram, WhatsApp records, photographs and messaging between them from December 2018 to early 2022.  She submitted Child Support misinterpreted the information she provided and did not accept this evidence supported she had reconciled with Mr Bartram.   

10. Mrs Bartram submitted Mr Bartram describes events to suit his purposes; that it is convenient for him to do so.  It was convenient for him to keep her in [Country 1] so that he had fewer expenses.  She contends Mr Bartram is manipulative and discourages communication.  Even when the borders re-opened after COVID restrictions were lifted, she did not have the finances to return to Australia after the birth of their [child].  She contends Mr Bartram is manipulating the situation and got rid of them quietly in a convenient arrangement for him, without divorce.

11. Mrs Bartram told the Tribunal that if there has to be notification of a separation, she could agree on a date sometime in 2021, but she contends an announcement has not been made about their separation, nor has Mr Bartram communicated this to her.  Mrs Bartram contended she had reconciled in December 2018 and remained reconciled until sometime in 2021; she is unsure of a date of separation other than to say she would accept a date in 2021; she does not know what is in Mr Bartram’s head.  Mrs Bartram maintained she was a good wife and Mr Bartram has not asked about her or the children’s welfare.   

Mr Bartram’s evidence

1. Mr Bartram conceded he was legally married to Mrs Bartram but they have been separated in February 2018 and continue to be separated.  He has not reconciled and he has no (marriage-like) relationship with Mrs Bartram; it was as simple as that.  He said that there were some mistakes in the divorce papers he filed and he withdrew the application to correct these errors.  He is working through this with a lawyer in terms of next steps and intends to finalise the divorce in due course.

2. Mrs Bartram told the Tribunal that after separating in February 2018, he moved from [Suburb 2] to [Suburb 1] for work and due to the separation.  They did not have a set schedule in relation to his access to their child.  He said that sometimes Mrs Bartram would deliver the child to him in [Suburb 1] and she sometimes stayed over.  He acknowledged that they had intimate relations but this did not mean they had reconciled.

3. Mr Bartram gave evidence that Mrs Bartram left Australia in May 2020 with their child without his knowledge and he initially had some brief contacts with her in relation to the birth of their [child].  There were also photos exchanged.  He was not aware when Mrs Bartram returned to Australia and has not seen the children for four years; he has not seen his [child].

4. Mr Bartram gave evidence the relationship started to fracture in 2016 when he travelled to [Country 2] to see his family, and Mrs Bartram went to [Country 1] with their child to see her family and there were long periods of time they were apart. 

5. Mrs Bartram told the Tribunal he needs to issue further legal proceedings for the divorce to be finalised and he is working with his lawyer to do this.  He has no commitment to the relationship continuing.  He responded that this matter is not of convenience for him, on the contrary it is inconvenient.  He disputes Mrs Bartram’s evidence that he does not wish to see the children; he wants to see them but they are in [Country 1] and contact has not been possible and he has not been included in the children’s lives.  There is no communication between them and he is gobsmacked with the current state of affairs.

6. In determining whether a person is a “member of a couple”, it is well-established that decision-makers must consider all the criteria set out in subsection 4(3) of the Act. The Tribunal referred to Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, where the Federal Court discussed the appropriate approach to making an overall assessment of a relationship:

   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.

   It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based. (at 32 FCR 170)

7. This Tribunal is required to reach an objective assessment of the relationship. Therefore, even in cases where the person or persons consider themselves as being separated, the Tribunal, making its own assessment of the evidence, may conclude differently. In this case, the Tribunal must determine whether, having regard to all relevant factors, Mrs Bartram and Mr Bartram reconciled on December 2018 and were members of a couple or whether they were living separately and apart on a permanent or indefinite basis, in the relevant period. The courts have considered the term “separation” in a number of different contexts, including under the Family Law Act 1975. Addressing the issue of the meaning of the term “separation”, Watson J said:

   In my view, separation means more than physical separation – it involves the destruction of the marital relationship (the ‘consortium vitae’). Separation can only occur where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship of each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.

   When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.” (In the Marriage of Todd (No. 2) (1976) 9 ALR 401)

8. The Tribunal must consider whether Mrs Bartram and Mr Bartram were “members of a couple” for the purposes of child support from 24 December 2018, which Mrs Bartram claimed was the date of reconciliation after a seven-month separation. The reconciliation is refuted by Mr Bartram, who contends they continued to be separated throughout the relevant period and beyond. In deciding whether Mrs Bartram and Mr Bartram are members of a couple and whether they were living separately and apart on a permanent or indefinite basis (subsection 4(3A) of the Act) in the relevant period, the Tribunal must take into account the factors in subsection 4(3).

9. The Tribunal took detailed evidence from her in relation to each of the relevant factors. The evidence presented at the hearing was broadly consistent with the information contained in the Child Support material. The Tribunal considered the overall evidence before it in relation to each of the elements listed at subsection 4(3) of the Act and considered each factor as it pertained to all the circumstances of the relationship between Mrs Bartram and Mr Bartram in the relevant period. The Tribunal has addressed each of the factors below.

Financial arrangements

1. This includes joint ownership of assets, joint debts, any significant pooling of resources, major financial commitments, any legal obligations owed by one person in respect of the other and the basis for any sharing of day-to-day household expenses.

2. Mrs Bartram gave evidence that she did not have any joint financial arrangements with Mr Bartram and there was very limited if any financial connection between the parties.  Any financial relationship was severed previously when they separated in February 2018 and had not been renewed in any way. Mrs Bartram lived in [Suburb 2] and Mr Bartram in [Suburb 1] some 70 kilometres away.  They each met their own household expenses with contribution from each other, and did not have any joint bills or joint bank accounts. 

3. Having considered the evidence in respect to the overall financial relationship between Mrs Bartram and Mr Bartram, the Tribunal accepts the arrangement between them does not have elements similar to that of a member of a couple; essentially they lived independently of each other for most of the relevant period, while it is acknowledged that Mrs Bartram sometimes spent time together with Mr Bartram and their child, in [Suburb 1].   

4. The Tribunal notes Mr Bartram continued to be liable to pay child support to Mrs Bartram in the relevant period and there were ongoing discussions with Child Support in relation to child support assessment, including discussions about Mr Bartram paying more child support.  Payment of child support is predicated on the parties being separated. 

5. The Tribunal finds the financial relationship between Mrs Bartram and Mr Bartram in the relevant period, is not like that of a member of a couple, rather it is like that of people who are separated.

Nature of the household

1. This includes living arrangements, how housework is arranged and any joint responsibility for caring for children.

2. The evidence before the Tribunal is that the parties maintained separate households in the relevant period, living a significant distance apart.  On occasions Mrs Bartram stayed with Mr Bartram and their child in his [Suburb 1] home. The parties each met all household costs without contribution by the other and they were each responsible for all aspects of the household in the relevant period. Mrs Bartram lived overseas from May 2020 to September 2022, and had limited contact with Mr Bartram in this period.

3. The Tribunal accepts Mrs Bartram and Mr Bartram continued to live separately and apart in the relevant period. The Tribunal finds there was no intention between the parties to live together as a couple in the relevant period.

4. The Tribunal is satisfied that the household arrangements between Mrs Bartram and Mr Bartram was like that of two independent people living apart. The Tribunal accepts that the nature of the household was like that of independent people and not members of a couple.

Social aspects

1. This includes whether Mrs Bartram and Mr Bartram present themselves as being partnered to society, how other people view their relationship and whether they make shared plans for social activities.

2. Mrs Bartram gave evidence she considered herself as reconciled with Mr Bartram although she acknowledged Mr Bartram sees things differently.  Mr Bartram was clear in his evidence that he did not consider there was a reconciliation in December 2018 and he continued to be separated from Mrs Bartram. 

3. The Tribunal accepts that Mrs Bartram and Mr Bartram engaged in very limited, if any, social activities in the relevant period.

4. The evidence before the Tribunal is that the parties married in 2012 and the relationship started to fracture in 2016 and it is common ground that there was a separation in February 2018.  While Mrs Bartram holds a firm view that they reconciled in December 2018, Mr Bartram holds a clear contrary view.

5. The Tribunal is unable to conclude there was any shared social or family activities as a couple between the parties in the relevant period.

Sexual relationship

1. This includes whether Mrs Bartram and Mr Bartram had an exclusive sexual relationship in the relevant period.

2. The Tribunal accepts the parties had a sexual relationship on occasion but not an ongoing sexual relationship throughout the relevant period. The Tribunal places limited weight on this factor as a stand-alone factor.

Commitment to each other

1. This includes how Mrs Bartram and Mr Bartram see the relationship, the length of the relationship, the nature of any companionship and emotional support they provide to each other, and whether they consider that the relationship is likely to continue indefinitely.

2. The Tribunal accepts that there was limited contact between the parties after the separation in February 2018, including a period when Mrs Bartram was overseas from May 2020 to September 2022.  Mrs Bartram gave evidence that the parties reconciled in December 2018, although she conceded that she may accept a separation on an unspecified date in 2021; it is unclear why she conceded this point.  Mr Bartram gave very clear evidence that there was no reconciliation and he remained separated.  He referred to commencing legal proceedings to finalise his divorce and although he withdrew the proceedings due to some mistakes in the paperwork, he intended to recommence formal legal proceedings and has engaged a legal representative for this.  There is no evidence of mutual support between the parties. 

3. There is no evidence of mutual commitment between the parties and the Tribunal is unable to conclude there is a committed relationship between Mrs Bartram and Mr Bartram as members of a couple, in the relevant period.

4. The Tribunal has had the opportunity to obtain detailed oral evidence from Mrs Bartram and Mr Bartram about the nature of their relationship in the relevant period. The evidence before the Tribunal was broadly consistent with the evidence considered by Child Support. On the evidence before it, the Tribunal is satisfied Mrs Bartram’s and Mr Bartram’s living arrangements and circumstances, in the relevant period do not meet the criteria to be considered as members of a couple. The Tribunal has found they were living separately and apart on a permanent and indefinite basis throughout the relevant period.  The Tribunal has found there was no re-conciliation between Mrs Bartram and Mr Bartram on 24 December 2018 and they continued to be separated.

5. The Tribunal therefore accepts that Child Support correctly determined the assessment should not be suspended and that a terminating event has not occurred.

DECISION

The Tribunal affirmed the decision.