Camilleri and Secretary, Department of Family and Community Services

[2005] AATA 212

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 212

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/876

GENERAL ADMINISTRATIVE DIVISION		)
Re		VICTORIA CAMILLERI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES 

Respondent

DECISION

Tribunal Robin Hunt, Senior Member

Date14 March 2005

PlaceSydney

Decision The Tribunal affirms the decision under review

..................[sgd]............................

Ms R Hunt

Senior Member

CATCHWORDS

SOCIAL SECURITY –Parenting payment single – Applicant living at same address as husband – Claim that living separately and apart at shared address - Member of couple.

Social Security Act 1991 ss 4 and 110

Re Kajzer v SDSS (2000) FCA 259

REASONS FOR DECISION

14 March  2005 Robin Hunt, Senior Member         

summary

1.      Mrs Camilleri, the applicant, and her husband were living apart at the time of the Tribunal’s hearing of Mrs Camilleri’s application but had not divorced. Previously, Mrs Camilleri was residing in the same house as her husband but receiving payments as a single person when, on 21 February 2002, a Centrelink delegate decided that she should no longer be treated as a separate person. The delegate decided Mrs Camilleri was a member of a couple and Centrelink reduced her payments accordingly. Mrs Camilleri’s single person payments resumed when she left the house she had shared with her husband on 12 September 2003. She is seeking review of the decision not to pay her the single rate between 21 February 2002 and 12 September 2003. The Tribunal has decided to affirm the decision that she was a member of a couple and was not entitled to the parenting payment single for the period claimed. The Tribunal’s reasons are set out below.

issue

2.      The matter before the Tribunal is whether Mrs Camilleri is a member of a couple. The parenting payment single rate of pension is higher than the partnered rate. The decision of the Centrelink delegate resulted in a decrease in the Mrs Camilleri’s payments from 21 February 2002 and 12 September 2003. Mrs Camilleri claims that, although she was still legally married to Mr Camilleri and living at the same address, she was living separately and apart and was entitled to the payment for a single person.

3. There is no dispute that Mrs Camilleri is legally married to Mr Camilleri. The issue is whether she was living separately and apart from Mr Camilleri on a permanent or indefinite basis at the time in question. Section 4 of the Act deals with matters to be taken into account in forming an opinion about whether the relationship between two people is that of a ‘couple’.

LEGISLATION

4. Section 4 of the Social Security Act 1991(the Act) defined when a person is a member of a couple. Where a person is married, section 4 sets out, in part:

4(2) …, 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…, living separately and apart from the other person on a permanent or indefinite basis; …

evidence

5.      The record before the Tribunal shows that Mrs Camilleri had, since 1997, been paid the parenting allowance on the basis that she was single. Then, someone reported to Centrelink on 8 February 2002 that Mrs Camlleri was living with her husband. After some intervening steps, Centrelink notified Mrs Camilleri that she would in future be assessed as a partnered person. Mrs Camilleri was subsequently granted a disability support pension and has been assessed as a separated person since she left the family home on 13 September 2003.

6.      Mrs Camilleri told the Tribunal that her marriage has been difficult for many years. She and her husband have six children. Some of the children were still living at home and some had left. Mrs Camilleri said that at the time when someone informed Centrelink that she had resumed living with her husband in 2002, her husband was giving her no money and she was paying for everything out of her own funds. She was paying for repairs to the house using her credit card. As a result, she had incurred a debt of $6,000. She still owed $3,000 or so and had sold the washing machine to help make payments.

7.      Mrs Camilleri said that the marriage had been in trouble ever since Mr Camilleri’s mother arrived from Italy about 10 years ago. Her husband started giving his mother money and left Mrs Camilleri and the family short of funds. Her husband bashed her and on one occasion she was so badly injured that her doctor took her to the local court and she moved out of the house for 12 months. Mrs Camilleri further gave evidence that during the period in dispute, she and her husband each did their own shopping and made their own meals. They went with their daughter to do the shopping but that did not mean they shopped together. Her husband sometimes bought takeaway for himself and the children but not for her. She shopped for, fed and cared for the children and he did nothing to help. They sometimes sat at the dining table at the same time but never talked if he stayed at the table while she and the kids ate what she had prepared. They did, however, both watch one of their sons when he was playing football and they all went to church as a family. She had no intention of divorcing her husband but did not sleep with him and did not consider that she lived with him. They did not do much as a family. They both went to the local club because of their daughter but each paid their own way.

8.      Mrs Camilleri was asked about why she went to the hospital when her husband was admitted in 2002 and stayed overnight. Mrs Camilleri gave evidence that her husband had a heart attack. It was not correct that she took him to hospital, their daughter took him. Her daughter had insisted that she come too and a nurse had told her that she had to stay. She spent the night in her husband’s room sitting in a chair and left the next morning after another nurse said she need not have stayed.

9.      A computer printout before the Tribunal shows that Centrelink on 4 July 2002 rejected a claim for Mrs Camilleri to receive carer’s allowance to look after Mr Camileri as his condition was considered temporary. Mrs Camilleri denied that she ever applied for a carer allowance in connection with her husband’s period of ill health. She gave emphatic evidence that Mr Camilleri must have filled out any forms and signed her name. She alleged that her husband had signed her name at least once before when they sold their land at Bundaberg and put her share of the deposit into his own bank account.

10.     Mrs Camilleri gave evidence that she and her husband bought their currently owned house as joint tenants. They had been making improvements to the house but her husband did not want to finish the work. She still owned a half share and had taken no steps to change the ownership. She understood that her husband would receive her share and not the children if she passed away. She was not happy with this situation but had done nothing about it. She was scared to do anything because her husband did not want to change this arrangement. Mrs Camilleri also gave evidence that she and her husband applied together to a bank for a loan in 2002. She went along to the bank as Mr Camilleri’s wife because she wanted the loan so that they could fix the house.  She did not disclose to the bank that they were having matrimonial problems and were separated. She signed everything required and did not disclose the separation because she thought they would not be given the money. She said she did not misrepresent her position as she was still married. They were still fighting and split the money. Mrs Camilleri said she had not made a will as she was scared and it would cost too much. She told the Tribunal that she would make a will if her husband remarried.

11.     Further, Mr Camilleri said her husband paid no maintenance in 2002 and 2003 but he did give her some money towards shopping. They made a private arrangement because he was angry that he had to pay extra when she went to the Child Support Agency. When asked who made the mortgage payments, Mrs Camilleri gave evidence that she and her husband both contributed. She paid $100 per fortnight and her husband paid about $400 a fortnight from his wages.  Previously, Mrs Camilleri said she had been paying $200 per fortnight. Her husband paid the rates and gas bills and had his own telephone. There were two phones in the house. She paid for her telephone and had a bigger bill than her husband did because the kids made STD calls on her phone. 

12.     At present, two of the children were living with their father at the house because she had only one bedroom where she was living. Mrs Camilleri sometimes goes to the house and does things for the children as the house is still hers. She still had belongings and furniture there. She said everything in the house belonged to her. She left her things there because he would be angry if she removed them and would maybe sell the house. She said she would like to be able to return to the house for the children. There was a separate bedroom for her but she did not use it anymore except for one day when her husband went to Sydney.

13.     When asked who knew of the separation in the 2002, Mrs Camilleri said she had not told anyone because they had no friends anyway. Her daughter knew but not her son. Maybe a sister, Regina, would have known but Mrs Camilleri had not obtained a declaration or statement from anyone when Centrelink asked for a referee in 2002 as she did not understand what they wanted.

14.     Mrs Camilleri was shown a letter dated 8 February 2002 enquiring about her status for payment of parenting payment single and asking her to complete an attached questionnaire. When asked why she had signed the questionnaire for Centrelink stating that she was living as a couple with Mr Camilleri, Mrs Camilleri thought the form was filled out by a lady at Centrelink and that the signature was “maybe” hers. She said that she understood what the form was about and what she was signing but she had never gone to Centrelink with her husband. In response to questions about a family tax benefit claim signed in her name and indicating that she was married rather than separated, Mrs Camilleri said that she remembered that this money was taken from her when she had been saving it to register the car. She said she did not tick the ‘separated’ box because nobody knew they were separated. Mrs Camilleri also recalled signing a parenting allowance Centrelink form which stated that she and her husband were reconciled in March 2002 and said it was true they had reconciled at that time. They had filled it out together at home. Similarly, she acknowledged another parenting allowance form before the Tribunal that contained a tick against the married box rather than the separated box and was stamped by Centrelink as received on 4 November 2002. She had thought they were getting back together but that was not right.

15.     Mrs Camilleri produced a bundle of documents from Advocacy Northwest who wrote that they had given her some support. The documents included some information about Mrs Camilleri’s attempts to find appropriate accommodation should she move out of her house. There were also some notes about incidents and violent arguments with her husband that occurred at home including dates in 1995 and 2002.

16.     The Tribunal also heard oral evidence from Mr Camilleri by telephone. Mr Camilleri told the Tribunal that he did consider that he was separated from Mrs Camilleri between 21 February 2002 and 12 September 2003. He was unable to remember the exact date when they separated but said it was many years ago. He responded to a question about whether the separation was permanent by saying that “I don’t know what she is doing”. Mr Camilleri gave evidence that his employer reported that he was married in May 2002 because he had told him he was married six or seven years previously. Mr Camilleri had not told his family or friends of the separation, saying words to the effect that men were hiders. He remembered the form filled out for Centrelink in 2002 to do with their reconciliation. Mr Camilleri also said that he and his wife presented as a couple, sometimes going to the football and church together. He said they sometimes came together at Christmas but not last Christmas. He gave further evidence that he and his wife did not shop together but with the kids. They were never in the car together. He said he shopped for the children in 2002 and paid the bills. He paid some child maintenance directly to his wife or to the kids. He also paid the mortgage, electricity and rates. He paid for the telephone and did not know what Mrs Camilleri did about her phone.

17.     Concerning his hospital stay, Mr Camilleri told the Tribunal that he filled out related forms himself but could not remember whom he said was his next of kin and whether he said he was married. He remembered the kids being there and that his wife helped him one day. He filled out a carer allowance form because his wife was not there that day. He was not happy about the joint tenancy but had taken no legal advice about it. He said he had made a will in favour of his wife and children and wanted the children to have his assets. In 2002 he said he did not love his wife much and did not know if she loved him. He did not want a relationship with her because she was not there. He did not know if there was any prospect of them getting back together but his wife’s room was available to him in the house. He did not remember when the relationship broke down completely.

analysis

18.     Centrelink accepted that from 12 September 2003 Mrs Camilleri was separated from her husband. This decision came about when Mrs Camilleri furnished a copy of her residential tenancy agreement. Centrelink also, previously to the period in question, accepted that she was separated when it appeared that Mrs Camilleri was investigating whether she might move into rental accommodation. When Centrelink learned that Mrs Camilleri had in fact remained in the matrimonial home, it treated her as a member of a couple from 21 February 2002.

19. As noted above, section 4 of the Act sets out tests as to when a person is a member of a couple. Subsection 4(2) introduces the requirement that the member of the couple is not living separately and apart from the other member. Subsection 4(3) describes matters that the Secretary or Tribunal must consider in forming an opinion about the status of Mrs Camilleri and whether she is living separately and apart from her husband. All the circumstances of the relationship are to be considered and, in particular, include financial aspects of the relationship, the nature of the household, social aspects, whether there is a sexual relationship and the nature of the parties’ commitment to each other.

20.     Briefly, the evidence presented above shows that Mr and Mrs Camilleri share joint ownership of a house which is subject to a mortgage which they obtained as a result of presenting themselves as a couple in April 2001, although Mrs Camilleri was then receiving payments as a single person. Both parties to the relationship were making payment of different household bills although Mrs Camilleri paid for a separate telephone. The Tribunal heard that Mr Camilleri was providing Mrs Camilleri with some financial support for the children. The couple has not made wills excluding each other as beneficiaries. Overall, my conclusion is that the financial aspects of the relationship tend to show they still consider themselves as a couple, albeit estranged.

21.     As to the nature of the household at the relevant time, I note that the parties had separate living and sleeping arrangements but shared responsibilities for the children. While Mr Camilleri worked, Mrs Camilleri did the household duties, although she claims that she did not assist her husband, mainly looking after the children. I consider that the household was basically a shared one founded on the parties living as a couple with some tensions and modifications to the norm.

22.     As to the social side of things, Mr and Mrs Camilleri generally presented as a couple when attending church, their son’s football games, when Mr Camilleri was admitted to hospital and when doing business, for example, with the bank that financed their mortgage. They both told the Tribunal they did not discuss the breakdown of the marriage with family and friends. While there may have been some awareness socially of problems there is little evidence of this. The parties told the Tribunal that they no longer had a sexual relationship or implied this. However, this is only one aspect of the tests of whether persons are a couple and is not conclusive on its own.

23.     In terms of the parties’ commitment to each other, I have formed the view that they are still committed in some respects. For example, they have not altered the joint ownership of their house, Mrs Camilleri has left her furniture in the house, they have not excluded each other from their estates should either of them pass away and were providing some support to each other at the relevant time by managing a joint household. Mrs Camilleri indicated to the Tribunal that she did not intend to divorce her husband. No property proceedings have been commenced. Tension in a household is not enough to “spell the end of marriage”. See Re Kajzer v SDSS (2000) FCA 259. My overall assessment, therefore, taking into account the required factors under section 4, is that Mrs Camilleri was still a member of a couple between 21 February 2002 and 12 September 2003.

decision

24.     The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of hearing  30 November 2004
Date of decision     14 March 2005

Representative for the Applicant  Self Represented

Advocate for the Respondent  Centrelink