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

BPNT and VMNP and Secretary, Department of Social Services (Social services second review) [2020] AATA 2952 (14 August 2020)
Division:GENERAL DIVISION
File Number: 2019/7774
Re:BPNT
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

File Number: 2019/7851
Re:VMNP
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:14 August 2020
Place:Melbourne

The Tribunal affirms the decisions under review.
..........................[sgd]..............................................
Member K. Parker
Catchwords
PARENTING PAYMENT – DISABILTY SUPPORT PENSION – whether payments should be paid at “single” or “partnered” rate – Applicants have three biological children and they reside together in the same household – children have hyphenated surname containing surnames of both Applicants – Applicants claim they have never been in a relationship and lead separate lives – Tribunal satisfied that Applicants are members of a couple – decisions under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
REASONS FOR DECISION
Member K. Parker
14 August 2020
INTRODUCTION

These two applications were linked by the Tribunal to be heard and decided together as they require consideration of the same issues and evidence. The Applicants, BPNT and VMNP, have been in receipt of parenting payments and the disability support pension (DSP) under the Social Security Act 1991 (Cth) (Act) respectively, at the “single” rate, in circumstances where they co-signed a lease agreement on 17 March 2017 to occupy the same residence, and have since 6 April 2017, lived in this residence together with their three biological children born in 2016, 2018 and 2019. BPNT also has three other older children (unrelated to VMNP) living in this same household.
The Secretary of the Department of Social Services (Secretary) contends that as from 17 March 2017, BPNT and VMNP should be paid the parenting payments and DSP respectively, at the “partnered” rate applicable to a “member of a couple”. Accordingly, the issue to be decided by this Tribunal is whether BPNT and VMNP have been “members of a couple” since 17 March 2017 under the social security laws.
The Secretary lodged a set of documents on 19 December 2019 in respect of each of the Applicants.[1] A hearing took place on 14 April 2020 by telephone and further documents were submitted by the parties before and after the hearing. Further submissions were made by the Secretary on 17 April 2020. The Tribunal has now considered the oral evidence given by the Applicants at the hearing, all documentary evidence lodged with the Tribunal, and the submissions made by all parties to these two applications.
[1] The Tribunal will refer to these documents as BPNT T-Documents and VMNP T-Documents respectively.
For the reasons set out below, the Tribunal is satisfied that BPNT and VMNP are members of a couple and have been since 17 March 2017. Accordingly, the Tribunal affirms the decisions under review.
BACKGROUND
During the period 21 March 2009 to 15 July 2019, BPNT received parenting payments at the “single” rate under the Act.
During the period 8 March 2012 to 15 July 2019, VMNP received the DSP at the “single” rate under the Act.
As mentioned above, BPNT and VMNP are the biological parents of three children.
On 17 March 2017, BPNT and VMNP co-signed a lease agreement and moved into a four-bedroom house at Address ABC[2] with their three biological children and BPNT’s three older children.
[2] The Tribunal has withheld details of the address to protect the confidentiality of the Applicants and their children.
On Centrelink’s records, VMNP’s address has been recorded as Address ABC since 8 April 2017, except for a short period between 17 to 23 July 2019. VMNP asserts that he moved out of the house at Address ABC in February 2020 as outlined in further detail below. VMNP told the Tribunal he had recently attempted to change his address on Centrelink’s system to reflect this alleged move to the house next door, but he said that Centrelink would not allow him to make this change (other than to make a note on his file) while this application was on foot.
Lease agreement co-signed by BPNT and VMNP – March 2017
The Tribunal has before it a residential tenancy agreement (Lease Agreement) for the residential property at Address ABC dated 17 March 2017.[3] The Lease Agreement commenced on 6 April 2017 for a period of six months. The lessees are recorded as being BPNT and VMNP. The Lease Agreement recorded both VMNP’s and BPNT’s address at the time of the making the lease application as being “Address DEF”.
[3] Refer VMNP T-Documents T4.
BPNT gave evidence that before moving to Address ABC she had lived at Address DEF with her mother since about 1996 or 1997.
VMNP gave evidence that before moving to Address ABC he had lived at Address GHI with his mother since he was about 16 years old.
BPNT and VMNP denied that they had ever lived together at the residential property at Address DEF, as represented on the Lease Agreement. BPNT said this was confirmed in the witness statement provided by her mother.
At the hearing, BPNT said that the landlord had typed “Address DEF” onto the Lease Agreement as being the address for both VMNP and BPNT. BPNT pointed out that this address was typed into the lease (not handwritten) and then printed out. BPNT said that “they” did not think it was an issue. BPNT said it was a “typo” and that “typos happen”. BPNT said she was in the middle of signing a lease, that she needed a bigger house and so it was not an issue for her.
Similarly, VMNP confirmed that the landlord had inserted this information onto the form. At the hearing, VMNP said “to be honest, I did not pay much attention to the detail of the lease application form and did not think too much of it”. VMNP said he did not think “they” would encounter the present complication, which is why they “did not have it corrected”.
Original decision that BPNT and VMNP were members of a couple – 16 July 2019
On 16 July 2019, Centrelink decided that BPNT and VMNP were “members of a couple” for the purpose of the Act (Original Decisions).[4] Centrelink’s computer system records show that BPNT contacted Centrelink the following day to advise that she was not in a relationship with VMNP and that she would be homeless due to the cancellation of her parenting payment.[5]
[4] Refer BPNT T-Documents T12 and VMNP T-Documents T9.
[5] Refer BPNT T-Documents T19/97.
Centrelink records produced to the Tribunal indicate that on 22 July 2019, BPNT contacted Centrelink to advise that VMNP had “moved out” on 17 July 2019 and requested restoration of her parenting payment at the “single” rate.[6] Centrelink requested that BPNT complete a “Mod S” form (Mod S Form) and provide supporting documentation. A Mod S Form is entitled “Separation details”.
[6] Refer BPNT T-Documents T19/99.
Mod S Form completed by BPNT – 31 July 2019
On 31 July 2019, BPNT signed a completed Mod S Form.[7] At question 8, BPNT was asked whether she lived in the same home as VMNP and she answered in the affirmative. BPNT stated the VMNP’s “current address” was Address ABC.
[7] Refer BPNT T-Documents T13.
BPNT stated on the Mod S Form that she was “never in a relationship” with VMNP and when asked whether she thought they would “get back together”, she answered in the negative. BPNT provided details of two people (not relatives) who knew about their “separation”. When asked on the Mod S Form whether BPNT will share the care of her children or if the number of children in her care had changed since the “separation”, she answered in the negative.
Representations by Applicants to Centrelink in August 2019
On 6 August 2019, Centrelink contacted VMNP by telephone to notify him that the matter had been referred to a Centrelink authorised review officer (ARO) for review of the Original Decisions. The Centrelink file note of this conversation records that:[8]
(a)VMNP said that he had never been in a relationship with BPNT, even though they shared three children together;
(b)VMNP had been friends for 15 years with BPNT and that the children arose as a result of “hook-ups”;
(c)VMNP said that BPNT was hoping to get a housing commission place in the near future, but could not afford to move out financially; and
(d)VMNP looks after the children one hundred per cent of the time and they were not his responsibility, although he paid child support.
[8] Refer BPNT T-Documents T19/97.
On the same day, Centrelink also contacted BPNT by telephone. The Centrelink file note of this conversation records that:[9]
(a)BPNT said that child protection might become involved because she was no longer on an income support payment and she might not be able to afford food for her children;
(b)BPNT said she was paying the full amount of rent, i.e. $800 per fortnight and that she did not have much left over to feed her children.
[9] Refer BPNT T-Documents T19/97-98.
On 13 August 2019, the ARO contacted VMNP. BPNT answered his phone initially and then put VMNP on the line. The ARO’s file note of this conversation recorded that VMNP informed the ARO as follows:[10]
[10] Refer BPNT T-Documents T15.
(a)that he allowed BPNT to answer his phone because she was having difficulties with her phone and he was allowing her to use his phone at the moment;
(b)VMNP said he signed the lease with BPNT and moved into Address ABC, because she needed a bigger house;
(c)initially when they moved into Address ABC, BPNT had a bedroom to herself but that “now there are two additional children” he had the master bedroom and ensuite; BPNT slept on the couch; and the six children shared the other bedrooms and that the children and BPNT shared the family bathroom;
(d)when asked by the ARO about whether he had a sexual relationship with BPNT, he confirmed that they did, because “it was easy”, “it was there” and “convenient”, describing it as a “booty-call” that he “did not have to drive for”. He confirmed that it was ongoing but when the payments changed, they had not had sex and that their relationship had been affected, causing angst between them;
(e)VMNP said he moved in with BPNT because he had less responsibility than when he lived with his mother; he moved in to “help a friend out” and for the “fringe benefits”;
(f)VMNP said that in three or four months, if BPNT received government housing, he would move back in with his mother;
(g)VMNP had paid half the rent at Address ABC being $200 per week and he considered it fair for the adults in the house to split the rent;
(h)VMNP owned his own fridge in the house (and that BPNT had her own fridge that she rented). VMNP said he rented a washer, dryer, laptop and BBQ and had paid for a TV and that BPNT owned virtually everything that was in the kitchen; and
(i)VMNP denied ever having lived at Address DEF with BPNT. When asked why he had provided this address on the lease agreement, he did not provide an answer.
On 14 August 2019, the ARO contacted BPNT. The ARO’s file note of this conversation recorded that BPNT informed the ARO as follows:[11]
[11] Refer BPNT T-Documents T14.
(a)VMNP had acted as joint lessee for the property at Address ABC in order to help her secure a larger home to house her family and she would not be able to afford one by herself;
(b)VMNP has not been paying BPNT any rent since the Original Decisions which had reduced his DSP payments since 2019;
(c)BPNT said that she has allowed VMNP to live in the house rent-free because he contributed $60 per fortnight for the cost of water, electricity and gas bills and without that contribution, she would not be able to feed her children;
(d)BPNT confirmed that a child support assessment had been completed by the Child Support Agency, but she “refuses” to collect any child support from VMNP because the “trifling amount was not worth collecting” and that she had a “private arrangement” with VMNP;
(e)BPNT had bills (including for the internet, Foxtel and iPads for her children), in excess of $2,300 that she said she was unable to pay and that VMNP was not contributing financially toward those bills. BPNT said she had arranged for and paid for the NBN to be connected to the property and that “because it is Wi-Fi” that VMNP had access to it. BPNT did not explain why VMNP was not expected to contribute toward the Foxtel expenses;
(f)in respect of the tenancy agreement for the property at Address ABC, BPNT said that that the landlord knew that VMNP was not living at Address DEF, but the landlord had insisted on recording Address DEF on the tenancy agreement;
(g)prior to BPNT moving to the property at Address ABC until “just prior” to the birth of her youngest child in May 2019, she and VMNP had shared a sexual relationship and that the Original Decisions have affected their sexual relationship;
(h)BPNT denied that VMNP had been living with her at Address DEF before applying for the lease at Address ABC although she had allowed him to “use” that address when he was “in need”. The ARO noted there was no evidence forthcoming to support a particular reason why VMNP had the need to use an alternative address given that he had secure accommodation he was sharing with his mother and no other occupants in her three-bedroom unit;
(i)BPNT said she had more children with VMNP after they moved to Address ABC because she was at high risk of falling pregnant because she was unable to take the contraceptive pill and she had a latex allergy;
(j)BPNT had incorporated VMNP’s surname in their children’s surnames because she wanted them to know who their father was, and she said that it bore no relevance to the way they were viewed in the community (i.e. whether this indicated a choice to be viewed as a family unit in the community);
(k)BPNT said she gave VMNP the choice whether to sign the birth certificate for their children and that he chose to sign it;
(l)BPNT said that VMNP had attended the birth of all three children and that she had asked him to do so because otherwise she would have been alone (noting her mother was also present for the birth of one of their children). BPNT did not accept a suggestion made to her by the ARO that giving birth was an intimate experience and said that health professionals were also present at the birth;
(m)BPNT was asked why she had allowed VMNP to return to Address ABC after he had vacated for a short period. BPNT said that she was “helping out as a friend”, just as she had done when first signing the lease for the property at Address ABC and that that she had provided him with this assistance, so he “did not have to sleep in his car”;
(n)when asked about BPNT’s future accommodation plans, BPNT said she had refused to renew the lease for Address ABC in November 2018, because she was hoping to be placed on a waitlist for public housing. She said she had been on the waitlist since 2008 and discovered on 29 May 2019 that her application was no longer current. BPNT said she had been waiting to get an advocate in order to make a new application. After the hearing, BPNT lodged a copy of a letter confirming that she had been reinstated on the public housing waitlist. BPNT said that only an advocate may complete an application for government housing, which was why she had not lodged an application earlier; and
(o)BPNT does not require VMNP to find alternative accommodation, although she expected that he would pay her the rent he owed her at some stage. She said there was no formal arrangement in place for him to repay her, but they intended to make one.
Decision of ARO – 19 August 2019
On 19 August 2019, the ARO varied the Original Decisions that BPNT and VMNP were members of a couple with effect from 19 July 2019, and decided that they were members of a couple with effect from 17 March 2017 (ARO Decisions).[12] BPNT and VMNP sought “AAT first review” of the ARO Decisions by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).
[12] Refer BPNT T-Documents T16 and VMNP T-Documents T15.
AAT first review decision – 28 October 2019
On 28 October 2019, the AAT1 affirmed the ARO Decisions following an AAT first review (Decisions Under Review).[13] BPNT and VMNP seek “AAT second review” of the Decisions Under Review by the General Division of the Administrative Appeals Tribunal (this Tribunal).
[13] Refer BPNT T-Documents T2 and VMNP T-Documents T2.
LEGISLATIVE FRAMEWORK
Section 4 relevantly provides as follows:
Family relationships definitions – couples
(1) In this Act, unless the contrary intention appears:
…
"member of a couple" has the meaning given by subsections (2), (3), (3A), (6) and (6A).
"partner , in relation to a person who is a member of a couple" , means the other member of the couple.
"partnered" has the meaning given by subsection (11).
…
Member of a couple – general
(2) Subject to subsection (3), a person is a member of a couplefor the purposes of this Act if:
(a)…
(aa)      …
(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.
Member of a couple – criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, 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;
(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.
(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
…
Member of a couple – special excluding determination
(6) A person is not a member of a couple if a determination under section 24 is in force in relation to the person.
Note:   Section 24 allows the Secretary to treat a person who is a member of a couple as not being a member of a couple in special circumstances.
…
Standard family situation categories
(11) For the purposes of this Act:
(a) a person is partnered if the person is a member of a couple; and
(b) a person is partnered (partner getting neither pension nor benefit) if the person is a member of a couple and the person's partner:
(i)       is not receiving a social security pension; and
(ii)      is not receiving a social security benefit; and
(iii) is not receiving a service pension, income support supplement or a veteran payment; and
(c) a person is partnered (partner getting pension or benefit) if the person is a member of a couple and the person's partner is receiving:
(i)       a social security pension; or
(ii)      a social security benefit; or
(iii) a service pension, income support supplement or a veteran payment; and
(d) a person is partnered (partner getting pension) if the person is a member of a couple and the person's partner is receiving:
(i)       a social security pension; or
(ii) a service pension, income support supplement or a veteran payment; and
(e) a person is partnered (partner getting benefit) if the person is a member of a couple and the person's partner is receiving a social security benefit; and
(f) …
Note 1:       For social security pension see subsection 23(1).
…
CONSIDERATION
Financial aspects
Joint ownership of assets and joint liabilities

The consideration of joint ownership of assets has limited relevance in this application because BPNT and VMNP do not own any real estate or other major assets, except that VMNP and BPNT each own their own cars.[14] There was no evidence before the Tribunal indicating that BPNT and VMNP jointly owned any other assets or that they shared joint liabilities. BPNT and VMNP both referred to having debts and when they did so, they seemed to characterise those debts as being their own.
[14] Refer BPNT T-Documents T8/48.
Pooling of resources
The Tribunal is satisfied that BPNT and VMNP have not pooled their financial resources in that there was no evidence that they held a joint bank account or other investments.
The Tribunal notes that despite the absence of any pooling of resources through a joint bank account or other investments, BPNT and VMNP have used their respective incomes to cover the cost of household expenses. BPNT and VMNP have contributed, initially in equal shares, and subsequently, in disproportionate shares, to meet the major financial commitment of paying rent to the landlord of the premises at Address ABC to provide for accommodation to house themselves and their children. The Tribunal finds that this has been the case since 6 April 2017 until the present time for the reasons set out below under the heading “Living arrangements”. BPNT and VMNP have also made respective contributions to pay for utility bills. Currently, those arrangements consist of VMNP using the Centrepay system to make contributions of $20 to each of the electricity, gas and water bills (i.e. $60 in total) for this property. This is consistent with a practice expected by the Tribunal to be in place between members of a couple in a household consisting of a blended family in circumstances where there are limited financial resources available to BPNT and VMNP.
Legal obligations owed to each other
VMNP owes a legal obligation to BPNT to pay child support in respect of the care of their three biological children. It was not in dispute that a child support assessment had been issued requiring VMNP to pay child support payments to BPNT in the vicinity of approximately $40 or $50 per fortnight. Neither BPNT nor VMNP were sure of the exact figure.
However, at the hearing VMNP and BPNT both gave evidence that child support was not paid in accordance with the child support assessment. Instead, they said a private arrangement was in place. This arrangement previously worked on the basis that BPNT would let VMNP know when she needed something for the children, such as nappies or baby formula, and BPNT would buy those items. BPNT said that more recently, this arrangement had been changed to a system whereby VMNP now paid the utility bills for the premises at Address ABC as direct deductions from his benefits via Centrepay, in lieu of paying child support. BPNT said these payments are intended to cover back payment of child support owed by VMNP to BPNT and VMNP’s ongoing obligation to pay child support to BPNT. BPNT said this arrangement was not intended to continue and that once the VMNP had paid what is owed, in the future he would pay her child support in cash.
There was no evidence of BPNT owing any legal obligations towards VMNP.
Sharing of household expenses
Pursuant to the more recent private arrangement between BPNT and VMNP said to be in lieu of child support, VMNP has been paying part of the utility bills via Centrepay. BPNT said VMNP paid $20 for the gas bill, $20 for the electricity bill and $20 for the water bill. BPNT said that they did not share any other expenditure apart from the rent.
VMNP said that he did his own shopping for groceries and that he ate separately from BPNT and the children. When asked why this was the case, VMNP said that he would eat later in the evening than BPNT and the children and because he said, “I am a picky eater” and “I eat different foods to BPNT and her children”.
BPNT has paid for the cost of the internet service for the house and the Foxtel subscription and has allowed VMNP to use those services without making any contribution toward cost of those services. At the hearing, BPNT said that the Telstra bill that she had sent to the Tribunal on 27 March 2020 was addressed to BPNT only and demonstrated that they did not share expenses.
Where needed, BPNT and VMNP have contributed toward the payment of some household expenses. For other expenses, where it seems that VMNP cannot afford to contribute, BPNT covers those expense on his behalf and on behalf of their children. The formal child support obligations have not been enforced by BPNT and instead, there is a history of her providing leniency toward VMNP in relation to that obligation, in exchange that he would pay for some items needed to care for their children. In more recent times when VMNP could not afford to pay the rent at his sister’s house when he lived there for one week in mid-July 2019, BPNT allowed VMNP to move back into Address ABC on the basis that his previous contribution toward the rent would be reduced by half and that BPNT would make up the shortfall. Subsequently, BPNT allowed VMNP to live at the house at Address ABC rent-free, provided he made some contribution toward the utility bills. It was evidence that there was a considerable amount of “give and take” between them to make ends meet for the family to remain living at the premises at Address ABC, as would be expected between members of a couple.
After taking the above matters set out in paragraphs [27] to [36] into account, the Tribunal considers that the “financial aspects” of BPNT’s and VMNP’s interactions since 17 March 2017 are more akin to those that could be expected for members of a couple in the context of a large blended family with limited financial resources.
Nature of household
Responsibility for children
BPNT gave evidence that she cared for the children and that VMNP did not share this responsibility with her. At the hearing, VMNP maintained that he did not care for BPNT’s and his biological children. When asked at the hearing by the Secretary’s representative about some photographs appearing on VMNP’s Facebook page which had been produced to the Tribunal by the Secretary,[15] showing a close degree of affection between VMNP and those children, VMNP conceded that he “doted” over them “like any father would”.
[15] Refer VMNP T-Documents T12.
VMNP said he had not had any recent connection with the household (at Address ABC) because of the “corona stuff”. He said that due to the current State laws, he had not seen any of his biological children or BPNT in the last three to four weeks, “even though I literally live next door”. He said he not willing to risk getting a $1,600 fine.
The Tribunal accepts that VMNP may having assumed only a limited degree of responsibility for attending to the daily care of his children, leaving BPNT to attend to feeding and taking them to the doctor when they required medical attention. However, the Tribunal is satisfied that despite not attending to such matters, VMNP has a close and caring connection with his children and provides them with an ongoing level of emotional support and involvement as might be expected from any parent. The Tribunal considers that this is supported by the fact that VMNP remains living at the house at Address ABC (or even if one were to accept VMNP’s evidence that he is living next door) in circumstances where he has the option, by his own admission, to move back in with his mother at Address GHI as indicated to the ARO during an earlier phone call between the ARO and VMNP. The Tribunal is satisfied that he had not moved back to his mother’s house at Address GHI, because he wants to remain close to his biological children and BPNT. Address GHI is a long distance from Address ABC.
Living arrangements
At the hearing, BPNT told the Tribunal that she had been living at the premises at Address ABC since April 2017. Before this, BPNT said that she lived at the premises at Address DEF with her mother (and not VMNP) since about 1996/1997. VMNP told the Tribunal that before living at the premises at Address ABC, he lived with his mother at the premises at Address GHI and had done so since he was about 16 years old.
The Secretary contends that at least from 17 March 2017 when the lease agreement for the premises at Address ABC was signed, BPNT and VMNP have been members of a couple. BPNT submitted that the mere signing of a lease together does not constitute “being in a relationship”. She said that she and VMNP do not go on family outings; or go to friends’ houses together; or do anything that a general couple would do. At the hearing, BPNT said she was not in a relationship with VMNP and that he did not live at Address ABC anymore. BPNT explained that in February 2020, she had asked VMNP to leave and he left. She said: “we tried to let Centrelink know, but we can’t change any details, while this is in the works”.
At the hearing, VMNP said he had moved out of the premises at Address ABC into the house next door and that BPNT had asked him to do so, “for a number of reasons”. VMNP told the Tribunal, “I know this sounds funny” and he explained that he was subletting a room from his neighbour who had broken up with his partner in January 2020. He said his neighbour needed help to pay the rent and offered for VMNP to move in with him.
On 22 May 2020, BPNT sent to the Tribunal a Notice to Vacate Premises (Notice) purportedly received from her landlord in respect of the rental premises at Address ABC. It was made out to BPNT only, giving her notice that she was required to vacate the premises at Address ABC on 20 July 2020 because the property was to be sold or offered for sale.
On 28 July 2020, (one week after the date upon which BPNT was due, under the Notice, to vacate the premises at Address ABC), the Tribunal requested that BPNT provide an update as to where she was currently residing and to provide evidence of same. This inquiry revealed that BPNT has, in fact, remained living at Address ABC.
The Tribunal finds that BPNT and the children currently reside at the premises at Address ABC and have done so since 6 April 2017. The Tribunal also finds that from 6 April 2017 VMNP has resided with BPNT and the children at the premises at Address ABC and has continued to do so until the present time. The Tribunal makes this finding in respect of VMNP on the basis that there was insufficient evidence before the Tribunal to establish that VMNP had moved next door in about 22 February 2020, as asserted by him.
At the hearing, the Tribunal asked VMNP whether he could provide any evidence to corroborate his purported recent change in living arrangements, such as a statement by his neighbour to confirm he was living with him. VMNP told the Tribunal “To be honest, I hadn’t even thought about it”. VMNP said he was hoping to get a rent assistance form from Centrelink, but he said his request to change his address on Centrelink’s system was refused for the reason that Centrelink told him they could not change his address on the system while the AAT review process was on foot.
VMNP was asked by the Tribunal if he had changed his address with his mobile phone service provider, to which he said he had not yet done so because “he was having arguments with Telstra”. He explained he was trying to get an issue sorted out with Telstra from three months ago and was still waiting. He said his Telstra account was about $3,000 in debt. The Tribunal does not accept that this is a legitimate reason to explain why VMNP had not changed his registered address with Telstra. On the contrary, the existence of ongoing liabilities to this company is a good reason why he should have kept Telstra advised of his current residential address. The Tribunal considers that this evidence impacts negatively on VMNP’s credibility.
The Tribunal asked VMNP if he had taken steps to be added as a lessee on the lease to the premises next door to Address ABC. VMNP said he had not done so because his neighbour was the “lead tenant” who had the lease in his name and that his neighbour “liked to have control”.
Before handing down this decision, the Tribunal requested that VMNP provide an update about where he was living and to provide any supporting documentation. VMNP informed the Tribunal he was still living in the house next door to Address ABC. VMNP did not respond to the Tribunal’s request for supporting documentation. VMNP did not obtain and lodge any statement by his neighbour to confirm that VMNP was living in the house next door to Address ABC, or a copy of any updated mobile phone account showing his new residential address, which the Tribunal had identified at the hearing as being evidence that he may wish to submit to the Tribunal.
Before handing down this decision, the Tribunal also requested that VMNP send a copy of his driver’s licence to the Tribunal which would show details of his current residential address as registered with VicRoads. VMNP did not respond to this request, i.e. he did not provide a copy of his driver’s licence or offer any explanation as to why he did not do so. The Tribunal infers from the failure by VMNP to answer this request, that it is likely that VMNP’s current residential address shown on his driver’s licence does not align with his evidence that he lives next door to the premises at Address ABC. Further, VMNP could have provided, but did not, copies of bank statements showing a transfer of payments of rent or contributions to utility bills to his neighbour’s bank account (or written receipts for those payments if made in cash), as evidence that he was currently residing at the premises next door to Address ABC.
At the hearing VMNP told the Tribunal that when he moved next door, he left some of his furniture that was not required by him, being furniture that he owned outright. He said he had moved his bed and fridge to the house next door.
At the hearing, VMNP contended that his actions of moving in with BPNT at Address ABC and having another child with her, should not be deemed as him having a “relationship” with her. He said that he had many friends who have had one-night stands and had fallen pregnant from it. He said “I understand it is a little bit different in our circumstances, because we were living under the same roof. But we were living under the same roof, because I was helping a friend out. I was helping a friend move to a larger house. As I have said, I have since moved out. How [BPNT] pays her rent, I don’t know. It’s not my issue anymore. I don’t live there. I struggle to pay my rent as it is and pay my bills”.
In summary, the Tribunal was not persuaded by VMNP’s evidence (or BPNT’s evidence) about VMNP having moved next door and considers that it was a fabrication to improve the prospects of success in these applications. As outlined above, the Tribunal has requested that VMNP provide documentary proof of his current residential address. VMNP was actively guided through the process by the Tribunal but still, he did not provide any documents, for instance, a photo of his driver’s licence, a recent mobile phone account showing his purported new residential address or he could have provided a short statement by his neighbour to confirm that he was subletting a room in his neighbour’s house, as claimed. For these reasons, the Tribunal is satisfied on the balance of probabilities that VMNP is not living next door, but instead remains living at Address ABC with BPNT and the children until the present time.
Accordingly, the Tribunal finds that as from 6 April 2017 until the present time, VMNP has been living at the premises at Address ABC. However, the Tribunal considers that co-signing of the Lease Agreement on 17 March 2017 marked the beginning of BPNT’s and VMNP’s existence together as members of a couple, being the time they had committed that they would live together as a couple and indeed, a family. This is dealt with in more detail below under the heading, “Nature of commitment to each other”.
Responsibility for housework
There was insufficient evidence before the Tribunal to make any definitive findings about the balance of who attended to the housework at the premises at Address ABC. The issue is further complicated by the fact that VMNP may be impaired from undertaking housework, as he is presently in receipt of a DSP which suggests that he has some type of functional impairment caused by permanent medical conditions, being the basis upon which such a pension is paid. The Tribunal accepts that BPNT may have done the lion’s share of the general housework. The Tribunal notes that VMNP has indicated on the Centrelink “Relationship details” form that he paid for the garden to be maintained professionally.[16]
[16] Refer BPNT T-Documents T8/48.
The Tribunal considers that the above factors referred to in paragraphs [38] to [56] are indicative that the nature of the household at the premises at Address ABC is akin to that of members of a couple raising their three biological children in not a particularly close, but certainly, a caring family environment in the context of a large blended family with limited financial resources.
Social aspects
BPNT and VMNP acted jointly in making an application for a lease for the premises at Address ABC, although more recently the landlord appears to address the Notice to Vacate Premises only to BPNT. Otherwise, BPNT and VMNP do not appear to overtly hold themselves out as members of a couple in the broader community, although it seems that their interaction with the broader community is quite limited. There was no probative evidence available to gauge whether (or not) BPNT and VMNP made plans for, or engaged in, joint social activities together to the extent that they engaged in such activities. The Tribunal notes BPNT’s evidence at the hearing to the effect that because the finances of both BPNT and VMNP were limited and BPNT bears the onus of caring for a significant number of children, she could not travel far in the car due to not being able to afford the petrol and that they did not have the personal freedom to have a social life. Specifically, BPNT gave evidence that since having her six children, she “no longer had a circle of friends”. To that extent, this consideration has limited relevance in the present application.
Sexual relationship
BPNT and VMNP gave evidence at the hearing that they engaged in occasional sexual relations and that this continued up until the time that their youngest child was born. They gave evidence that their sexual relationship had ceased after the birth of their youngest child and had not resumed. The birth of their youngest biological child occurred in 2019 being the year that BPNT’s and VMNP’s social security payments were adversely affected by the making of the Original Decisions.
The Tribunal was not persuaded by BPNT’s and VMNP’s evidence that they no longer have any sexual relations. The Tribunal has found that BPNT and VMNP remain residing in the house at Address ABC and given VMNP’s evidence about the convenience that this presents to BPNT and VMNP, the Tribunal considers that on the balance of probabilities that sexual interaction still continues between BPNT and VMNP, albeit to a limited extent, which is to be expected for members of a couple raising six children in a blended family environment.
Nature of commitment to each other
BPNT and VMNP have known each other since secondary school. At the hearing, VMNP said that he and BPNT were friends growing up as teenagers. He said he lost contact with BPNT when he was about 16 years old and ran into her again in 2015; resumed a friendship with her; and they have been friends ever since.
VMNP and BPNT deny that they were ever in a “relationship” with one another. They seek to explain that they have had three children together as a result of “drunken hook-ups” in their words, and that was all.[17] VMNP contends that it would be “ridiculous” if he and BPNT are deemed to be in a relationship because they have conceived three children. VMNP contends that if it were not for the children being born, he and BPNT would not be regarded by Centrelink as members of couple only because they were living under the same roof. At the hearing, VMNP said it was “immoral” and “unfair” and that they had “done the right thing from the beginning” and had not tried to hide from Centrelink the fact that they were living under the same roof.
[17] Refer VMNP T-Documents T7/45. At the hearing, BPNT informed the Tribunal that this was not the case with respect to her youngest child, which was a mistake on her behalf, citing that “contraception does not go well for me”.

VMNP sought to rely upon the completion of a Centrelink “Verification of Relationship Status (SC321)” form (Verification Form) on 28 July 2019 by one of his friends (Friend D).[18] Friend D stated in this form that to the best of his knowledge, VMNP’s current relationship status was “single” and Friend D made the following comment: “As long as I have known [VMNP] for I have known him to be single. I have never seen [VMNP] with anyone always by himself”.
[18] Refer VMNP T-Documents T8/48&49.
BPNT sought to rely upon completed Verification Forms by:
(a)a friend (Friend I) on 27 July 2019, who indicated that BPNT’s current relationship status was “single” to the best of her knowledge. Friend I also stated: “They have never been in a relationship”;[19]
(b)a friend who is also the father of two of her older children (Father T) on 3 October 2018, who stated: “I have known [BPNT] for 20 years and I see her on a regular basis and to my knowledge she is single”.[20]
[19] Refer BPNT T-Documents T10/57&58. VMNP also claimed at the hearing that he had submitted to Centrelink a further form by another friend, Friend K. That form was not in the T-Documents or able to be produced by VMNP as he said he had given it to Centrelink. At the hearing, the Tribunal request that the Secretary’s representative make inquiries to find this form as completed by Friend K. In further written submissions lodged by the Secretary on 17 April 2020, the Secretary’s representative has stated that: “The Respondent has no record of statutory declarations or other verification forms or statements signed by any friend or family of BPNT or [VMNP] additional to the documents in the section 37 documents”. Even if it could be established that this form was completed by Friend K, it would not have altered the Tribunal’s conclusion in this matter.
[20] Refer BPNT T-Documents T6/22&23.
BPNT tendered a further statutory declaration by Father T dated 25 March 2020 which stated as follows:
I am the father of [two of BPNT’s older children]. I have known [BPNT] since 1999/2000 when she was 14 years old. I have also known [VMNP] since 2001. We have been friends for some time.
Neither myself or [VMNP] have ever been in a relationship with [BPNT] even though I have fathered 2 of her children. Virtually classified friends with benefits.
I am aware [VMNP] resided at [the suburb of the premises of Address ABC] to aid BPNT getting a larger home for kids. But he had a room of his own as [BPNT] slept in the lounge. His room consisted of an ensuite. He also had his own fridge, cooking items ect.(sic)
Also [VMNP] really does nothing there. As I come to help when available to mow lawns and help with kids. I am also aware [VMNP] no longer resides in the house and has not since February.
The Tribunal notes that in his statutory declaration, Father T stated that he helped, when available, to mow the lawns. This is inconsistent with VMNP’s representation in the Centrelink “Relationship details” form completed by him on 27 July 2019 that the gardening was “professionally done” and paid for by him, and that general maintenance is undertaken by the “landlord”.[21] VMNP has not made any mention in his answer to question 57 on that form of Father T’s claimed involvement in maintaining the garden by mowing the laws. Further, BPNT stated in the Centrelink “Relationship details” form completed by her on 17 October 2018 that VMNP looked after the garden.[22] For this reason, the Tribunal does not consider the statements made by Father T made in the statutory declaration and Verification Form as being credible or reliable, and rejects this evidence.
[21] Refer VMNP T-Documents T8/27.
[22] Refer BPNT T-Documents T7/33.
BPNT tendered a statutory declaration by her mother dated 25 March 2019 declaring that VMNP did not live with her at Address DEF and that only she and BPNT had resided in this unit. The Tribunal accepts this evidence. The Tribunal notes that BPNT’s mother did not make any statement regarding the status of the relationship between BPNT and VMNP.
The Tribunal acknowledges that VMNP has a perception, as does Friend D and Friend I, that BPNT and VMNP are not in a “relationship”. However, it is very difficult for the Tribunal to accept that BPNT and VMNP have not been in a relationship with each other. The following factual circumstances demonstrate a longstanding level of commitment since March 2017 between BPNT and VMNP after they committed to moving into the house at Address ABC together, sufficient for the Tribunal to make a finding that BPNT and VMNP are members of a couple:
(a)they are the biological parents of three young children and have cared for them each in their own way, with BPNT providing much of the day-to-day support including feeding the children and taking them to the doctors as required, and VMNP by “doting” on them, to use VMNP’s words;
(b)BPNT and VMNP have chosen to name their children in a way that incorporates both of their surnames joined by a hyphen. BPNT and VMNP both gave different accounts of the reasons for naming their children in this way, which called into doubt their credibility. BPNT said that she named the children this way because the children had a right to know who their father was. VMPN said that he named the children this way to make it obvious that they were his children because he was named on the Sex Offenders Register and he was not permitted to have unsupervised access with children, unless he could show he was their father. This explanation was not plausible because there was evidence before the Tribunal that VMNP was named on the biological children’s birth certificates. VMNP was able to keep a copy of those birth certificates and show them to authorities as required if any question were raised about him having access to the children. The Tribunal considers that by naming the children in this hyphenated way, both BPNT and VMNP have represented to the community and to each other that both parents intend to play a significant role in the future lives of their children and that they wished to be identified as such in the broader community as all belonging to the same family;
(c)VMNP attended the birth of his children to BPNT and provided support to BPNT on each of those occasions, including for the birth of one of their children when BPNT’s mother was present and available to provide that support in place of VMNP. This demonstrates a significant degree of commitment to support BPNT and his intention to be involved as the father in their family unit;
(d)BPNT has permitted VMNP to live at the premises at Address ABC since April 2017. BPNT described this act as “helping him out”, because otherwise he would be “sleeping in his car”. BPNT’s concern for VMNP’s well-being and willingness to assist him to ensure there was a roof over his head, demonstrates a significant emotional commitment to VMNP;
(e)VMNP agreed to share a house with BPNT to help her to secure a larger home for her and the children. This demonstrates VMNP’s concern for the wellbeing of BPNT and the children by ensuring that they secured a large enough home that would accommodate them comfortably;
(f)BPNT did not require VMNP to pay child support as he was legally required to do (as per the child support assessment), which the Tribunal considers indicates a degree of closeness, or at least cooperation, between them through BPNT’s display of leniency at times when VMNP’s financial resources are reduced or limited; and
(g)the Tribunal is satisfied that BPNT and VMNP have had a sexual relationship and while it may not be as active as it was before they had their children, the Tribunal is not persuaded that it has ceased altogether or is out of step with members of a couple who are raising a large blended family. The Tribunal was not persuaded by VMNP’s evidence that he did not see he and BPNT being together as a couple into the future. If this was the case, and if VMNP has such limited involvement with the children as he suggested when giving evidence, VMNP would have moved back in with his mother after his sister asked him to move out of her house in mid-July 2019.
The Tribunal considers that people would see BPNT’s and VMNP’s relationship as being akin to a de facto relationship upon considering the compelling objective factors being that they are raising their three biological children under challenging financial circumstances in a blended family environment all under the same roof.
CONCLUSION
Following a consideration of all aspects of their relationship referred to under the heading “Consideration”, the Tribunal concludes that, by BPNT and VMNP making the commitment on 17 March 2017 (by co-signing the Lease Agreement) to move to Address ABC and by continuing to reside together at this property with their children until the present time, BPNT and VMNP have been “members of a couple”. The Tribunal concludes that it was correct for Centrelink to calculate their social security benefits at the “partnered” rate, instead of the “single” rate, as from 17 March 2017.
DECISION
Accordingly, the Tribunal affirms the Decisions Under Review.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

........................[sgd]......................................
Associate
Dated: 14 August 2020

Date of hearing: 14 April 2020

Applicants: In person by telephone

Advocate for the Respondent:
Mr T Noonan

Solicitors for the Respondent: Services Australia

[2020] AATA 2952

14 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Appeal

Date of hearing:	14 April 2020
Applicants:	In person by telephone
Advocate for the Respondent:	Mr T Noonan
Solicitors for the Respondent:	Services Australia