Broadbent and Secretary, Department of Family and Community Services
[2004] AATA 527
•6 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 527
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/46
GENERAL ADMINISTRATIVE DIVISION )
Re DEBORAH BROADBENT Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Ms MJ Carstairs, Member Date6 May 2004
PlaceRockhampton
Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 15 December 2003 and substitutes for it a decision that the applicant, Deborah Broadbent, remained entitled to be paid parenting payment single during the relevant period. The matter is remitted to the respondent for assessment of arrears of parenting payment single payable to the applicant.
...................(Sgd)......................
MJ Carstairs
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – parenting payment single – eligibility – whether applicant in a marriage-like relationship – no financial ties or sharing of assets – separate lease and household arrangements – casual sexual relationship – weighing up exercise – not satisfied the applicant is in a marriage-like relationship – decision set aside
Social Security Act 1991
Re Tang and Director General of Social Services (1981) 3 ALN 83
Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497
Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252
McDonald v Director-General of Social Security (1984) 1 FCR 354
WRITTEN REASONS FOR ORAL DECISION
25 May 2004 Ms MJ Carstairs, Member 1. This is an application by Deborah Broadbent (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 15 December 2003. The SSAT affirmed a decision of a delegate of the respondent that the applicant was living in a marriage-like relationship with Vincent Teichmann and therefore was not entitled to receive parenting payment single.
2. At the hearing the applicant represented herself. The respondent was represented by its advocate, Ms H Wallis-Dunn. On 6 May 2004, the Tribunal gave an oral decision in this matter, setting aside the decision under review. On 11 May 2004, the respondent requested the Tribunal to provide written reasons for its decision pursuant to s43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The following are the Tribunal’s written reasons for its oral decision.
3. The Tribunal had before it the documents lodged pursuant to s37 of the AAT Act, as well as exhibits numbered A1 to A5 for the applicant and R1 for the respondent.
Background
4. The applicant is aged 29. From about April 2002, the applicant lived with Vincent Teichmann and others in a shared household in Brisbane. She moved to Rockhampton in early 2003, moving to live in a house owned by Vincent Teichmann’s parents, where he also lived. She has one child, Indigo, born on 28 March 2003.
5. The applicant applied for, and was granted, parenting payment at the single rate after Indigo was born (T5). She was granted payment from 4 April 2003. However, the payment was cancelled on 26 June 2003. She sought review of the decision to cancel the payment. However, an authorised review officer affirmed the decision on 7 October 2003 as did the SSAT. The applicant applied to this Tribunal on 19 January 2004.
Evidence
6. The parties agreed that there was little to add to the factual matters as set out in the materials in the “T” Documents, particularly the material set out in the SSAT decision. The applicant told the Tribunal she now has moved from the shared residence with Vincent Teichmann, having moved next door to live with a neighbour when a room became available in that house. The additional evidence which the applicant provided at the hearing was Indigo Broadbent’s birth certificate (exhibit A1); documents from her superannuation scheme, naming her parents as beneficiaries on her superannuation plan; and a revised nominated beneficiary where Indigo is the named beneficiary for superannuation (exhibits A3 and A4); and a letter dated 7 April 2004 from the applicant’s general practitioner stating that in June 2003 the applicant named her father as next of kin at the medical practice.
Consideration of the Issues
7. The relevant date for consideration is the date of the decision to cancel the parenting payment single, that is, 26 June 2003. What is now in issue is effectively the period from 18 August 2003 to 5 January 2004, when the applicant’s payment of parenting payment single was reinstated after she moved out of the shared household with Vincent Teichmann.
8. The legislation provides that a person will be considered to be a member of a couple if the requirements of s4 of the Act are met. Under consideration here is paragraph 2(b). Section 4(2) of the Act provides as follows:
“4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(b) all of the following conditions are met:
(i) the person has a relationship with a person of the opposite 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 marriage-like 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 for the purposes of section 23B of the Marriage Act 1961.”
9. Section 4(3) of the Act sets out the matters to be considered when forming an opinion as to whether a person is in a marriage-like relationship. That section provides as follows:
“4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship.”
10. At the hearing before the SSAT, the following findings were made:
“(i)Miss Broadbent and Mr Teichmann share a house owned by his parents at 127 Rundle Street, Rockhampton and have done so since 11 February 2003.
(ii)They previously shared accommodation in Herston from early in April 2002 to 20 January 2003.
(iii)Miss Broadbent and Mr Teichmann have no joint financial assets, liabilities or interdependence.
(iv)Miss Broadbent is liable to pay $80 per week of the total rent of $150 per week.
(v)They each pay for their own food, and contribute equally to utilities and household costs.
(vi)Miss Broadbent has a son Indigo born on 28 March 2003, for whose care and support she takes total responsibility.
(vii)It is possible that Mr Teichmann is Indigo’s father.
(viii)Miss Broadbent and Mr Teichmann have an ongoing sexual relationship.
(ix)They maintain separate bedrooms.
(x)They share household cores and each does his or her own washing and ironing.
(xi)Miss Broadbent and Mr Teichmann engage in both joint and separate social activities.
(xii)They see themselves as boyfriend and girlfriend exploring the possibility of a future long-term commitment.
(xiii)If others view them as a couple they correct those perceptions. …”
11. The applicant confirmed the correctness of the factual material on which the previous decision-makers have formed their view. There is little additional material, excepting material now provided by the applicant in documents (exhibits A1, A2 and A3), to confirm information the applicant has previously provided orally, and which does not appear to have been disputed. The applicant’s honesty has not been questioned and the Tribunal considered that she could be relied upon as giving an accurate and truthful account of how the household between herself and Vincent Teichmann operated and about the other matters that have to be taken into account under the Act, as set out in s4(3).
12. The applicant made an extensive written submission in her application to the Tribunal and the Tribunal took that submission into account. She said the decision must be made by weighing up all the evidence and she submitted that decision-makers had distorted this process in her case by omitting to consider some of the evidence she had given and making assumptions about other parts of the evidence. In addition, at the hearing she submitted that she had been emphasising the financial issues, the lack of shared care of her son and certain other aspects of the household because she wished to demonstrate the ways in which the relationship between herself and Vincent was not such as would fall within the meaning of a marriage-like relationship under the Act.
13. Ms Wallis-Dunn submitted that the decision must be made on the basis that s4(3) does not provide a simple tick-list and all relevant circumstances must be taken into account. She submitted that the applicant has chosen to emphasise certain aspects and ignore others, by particularly emphasising the financial aspects and questions about the uncertainty of their commitment to the relationship.
14. Ms Wallis-Dunn submitted that in many marriages there will be little intermingling of finances and that people will own items and assets separately. Equally, she said, in many marriage-like relationships people will have separate social lives and will take holidays separately. She said the evidence showed some indications of Vincent being involved with Indigo and she said the relationship between the applicant and Vincent was now of such length that the question of commitment should be answered affirmatively. She submitted that an answer to a question on the family tax benefit form (exhibit R2) tended to confirm that Vincent was Indigo’s father.
15. Ms Wallis-Dunn referred the Tribunal to the decisions of Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497, Re Tang and Director General of Social Services (1981) 3 ALN 83, and Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252, noting in particular the similarities of Bell and the facts in the applicant’s case.
16. The Tribunal reached a decision taking into account the written and oral evidence and the submissions. As stated the applicant was receiving parenting payment single on the basis of the claim made in April 2003. It was decided she was entitled to the payment. The decision is about the cancellation in June 2003.
17. The principles to be applied when the decision under review is to cancel a payment have been considered by the Federal Court in McDonald v Director-General of Social Security (1984) 1 FCR 354. That decision sets out that in the setting of administrative review there is no formal onus upon the parties as might apply in other areas of the law. However, a practical requirement applies in regard to the state of the evidence depending upon whether what is under consideration is a claim for a payment or a decision that a payment, once granted, should be cancelled. The Court referred to the circumstances where a decision-maker may be undecided one way or another setting out that it is important to take into account the nature of the decision under review. If the matter is a claim then the material taken as a whole will not favour the granting of the claim. If, on the other hand, the decision concerns a cancellation, then the decision to cancel should not be taken.
18. In this case, factual matters have changed very little over the course of the review process. Looking at the findings of the authorised review officer as set out at T24, these were as follows:
·“You were with Mr Teichmann in Brisbane from 4/02.
·Mr Teichmann’s parents bought a house in Rockhampton and he moved to Rockhampton to live in that house – you moved to Rockhampton with Mr Teichmann and have lived in Rockhampton with him since 2/03.
·Mr Teichmann has a lease agreement with his parents – you have a separate lease agreement with Mr Teichmann in regard to your stay in his parent’s house.
·Mr Teichmann owns most of the furniture in the house but you have your own bedroom furniture.
·You pay Mt Teichmann % per week for the use of his white goods.
·You and Mt Teichmann have separate bedrooms.
·You share the household chores but do your own washing and ironing.
·You have separate bank accounts.
·You pay for your food separately.
·You have separate bedrooms.
·You share electricity and gas costs.
·The telephone is connected in your name as you receive a discount on the bill – the account is itemised so you are able to separate the account costs.
·You share the use of your car.
·You are included on Mr Teichmann’s house insurance.
·You go out together socially and have holidayed together previously.
·You have a child born 28/3/03 – you are unsure if the father is Mr Teichmann but Mr Teichmann has made clear that whether the child is his or not he is not ready to be a father.
·You meet all expenses associated with your child.
·You have an ongoing sexual relationship with Mr Teichmann and describe him as your boyfriend, though the relationship is not exclusive.”
19. These findings do not differ materially by the findings made by the SSAT and set out at paragraph 9 above. The Tribunal adopts those findings of fact. Looking at all the material in this case, and taking into account the matters that must be addressed under s4(3), the Tribunal finds as follows:
(a)Financial aspects – There is no intermingling of finances and no shared property. While the Tribunal accepts the correctness of the submission that there are many patterns of financial relations in marriages and between partners these days, nevertheless the evidence here is that in important matters there is a pattern of scrupulous separation. The applicant has a separate sub-lease, there is clear accounting for rent and separate itemising of household items that is more like a pattern of dealings between flatmates than a more personal relationship. Under this heading the Tribunal took into account the further evidence on financial matters as reflected in the naming of beneficiaries under the superannuation policy.
(b)Nature of the household – Taking into the accounts the facts as found by the authorised review officer and the SSAT, the Tribunal considered that the pattern was consistent with an arrangement between flatmates. It could equally be a household pattern in a modern marriage. Thus this factor did not clearly point one way or the other.
(c)Social aspects of the relationship – The Tribunal accepted the applicant’s evidence that she does not hold herself out as married and accepts that she introduces Vincent as a friend or a boyfriend and no more than that. There are few social interactions between the two, even taking into account the trips to the beach and occasional holidays.
(d)The Tribunal took into account the state of the evidence in regard to the paternity of Indigo. Exhibit A1 – the birth certificate – leaves blank the naming of the father. The Tribunal accepts the applicant’s evidence that she does not know for sure, and her acknowledgement that he could be the father. A sexual relationship is admitted there is no sharing of a common bedroom in the relevant period. The Tribunal accepts the evidence of the applicant on this and agrees that it is an important matter that distinguishes her case from that of Bell. The Tribunal takes account of the continued casual sexual relationship in the period.
(e)Nature of the commitment taking into account all of the matters listed in (e) – This, as Ms Wallis-Dunn submitted, is an important aspect. The relationship has been ongoing for over two years. The Tribunal agrees that this does reflect that there is some continuity, but this could equally be consistent with friendship and the factors of the parties not seeing the relationship as marriage like, taken with Vincent’s lack of involvement with the applicant’s son points against any commitment being marriage like.
20. In the end it is a weighing up exercise. The Tribunal was not satisfied, when all matters are taken together, that the applicant and Vincent are in a marriage-like relationship. The Act, as stated on numerous occasions, does not provide a checklist. The factors that make the relationship more or less like a marriage – an imprecise standard – have to be taken together and weighed up. This case has factors of both and clearly all decision-makers have struggled with it. When account is taken of McDonald’s case the Tribunal was satisfied that the correct decision was not to cancel the parenting payment single. The applicant at all relevant times was not a member of a couple and was qualified for the payment of parenting payment single.
Decision
21. The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 15 December 2003 and substitutes for it a decision that the applicant remained entitled to be paid parenting payment single during the relevant period. The matter is remitted to the respondent for assessment of arrears of parenting payment single payable to the applicant.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: Sarah Oliver
AssociateDate of Hearing 6 May 2004 (at Rockhampton)
Date of Decision 6 May 2004
Date of Written Reasons 25 May 2004
The Applicant appeared in person
For the Respondent Ms H Wallis-Dunn, Departmental Advocate
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