Carlson and Secretary, Department of Family and Community Services - [2002] AATA 484

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 484

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2002/4

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JILLIAN KAYE CARLSON
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date7 June 2002
PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
  (Signed)
  WJF Purcell
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – Carer Payment – whether applicant was a member of a couple – whether applicant has been overpaid – if so, whether overpayments have been correctly calculated
Social Security Act 1991 section 4

ORAL REASONS FOR DECISION

7 June 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 14 November 2001, which set aside the decision of an Authorised Review Officer of 13 August 2001, which had affirmed a decision of a delegate of 18 April 2001, to regard the applicant as a member of a couple from 2 February 1999, for the purposes of determining her entitlement to various social security payments. The SSAT substituted a decision that the applicant and her husband were not members of a couple between 2 February 1999 and November 1999, but that they have been members of a couple since 1 December 1999.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents). The applicant appeared on her own behalf and gave oral evidence. Mr Kilderry represented the respondent (the Department).
The applicant married Lee Carlson (the husband) in 1976 and they have two children, David, born on 28 September 1981, who does not live at home, and Ellenor, born on 11 May 1983. The marriage has been characterised by significant tragedy and stress regarding the children, and the husband suffers from post traumatic stress disorder and was unemployed for 10 years from 1990.
In February 1999 the applicant secured a 3-month contract with Centrelink, with a view to ongoing employment, and says that she decided to separate from her husband. The position at Centrelink was at Murray Bridge. She subsequently returned to Adelaide at the end of the 3-month contract, and underwent a gall bladder operation on 1 May 1999. She shared accommodation then with a lady she and the husband had met through their volunteer work. The applicant thought that she could assist the lady with her alcohol and drug abuse problems. The arrangement, the applicant said, was not economically viable and thus in November 1999 she returned to the matrimonial home, as she had been unable to secure alternative accommodation. She has continued to reside in the home since with the husband and her daughter, Ellenor. She and the husband hold the title of the home as joint tenants. They each have their own bank account, and one joint account into which each makes payment for half the mortgage, which is a total of $495 per month. All the other accounts that come into the home are paid on a 50-50 basis. The applicant gives Ellenor $50 per week in return for her filing accounts, and for her living expenses. Ellenor is now at university. The applicant and the husband no longer have mutual friends. They lead separate social lives and there is no sexual relationship between them. The applicant sees their shared accommodation as financially expedient.
On 18 January 2001 a decision was made that the applicant and the husband had been living as members of a couple since February 1999. The decision was reconsidered and affirmed on 18 April 2001, and affirmed by an Authorised review Officer on 13 August 2001. The decision resulted in debts being raised for the overpayment of Newstart Allowance and Carer Payment as follows: a debt of $63.80 for the period 4 May 1999 to 26 July 1999; a Newstart Allowance debt of $805.44 from 27 October 1999 to 14 August 2000, and a Carer Payment debt of $2,488.60 from 9 August 2000 to 4 January 2001, when payments were changed to the partnered rate.
The SSAT, on 14 November 2001, decided to set aside the decision and substitute a decision that the applicant and the husband were not members of a couple between 2 February 1999 and November 1999, but that they have been members of a couple since 1 December 1999. The Department has not as yet recalculated the first two debts in the light of the SSAT decision, a decision which the Department does not contest.
Section 4 of the Social Security Act 1991 (the Act) defines family relationships and, as far as is relevant for the purposes of this review, provides:
"4 Family relationships definitions – couples
…
Member of a couple - general
4(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(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.
Member of a couple - criteria for forming opinion about relationship
4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2) (a) or subparagraph (2) (b) (iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)       the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)      the basis of any sharing of day-to-day household expenses;
(b)       the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii)       the living arrangements of the people; and
(iii)      the basis on which responsibility for housework is distributed;
(c)       the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d)       any sexual relationship between the people;
          (e)       the nature of the people's commitment to each other, including:
(i)        the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship."
The applicant maintains that since November 1999 she has been living separately and apart from the husband under the same roof.
The Department contends that, having regard to sections 4(2) and (3) of the Act, the applicant is living as a member of a couple with the husband, because they have pooled their financial resources in relation, at least, to the mortgage payments, and are clearly able to live together in a relatively amicable way, despite living largely separate lives. They each contribute to the running of the household. They are unwilling to resolve matters between them by physically separating and placing their property on the market. The Department contends that the applicant and the husband are not living separately and apart, and, in accordance with section 4(2)(a) of the Act, the applicant is a member of a couple.
The applicant said in evidence that she is now self-employed; she drives an Access cab on Friday and Saturday nights, and works as a support worker from 6pm to 10am, 7 nights a fortnight. She said that the situation has changed between her and the husband since her return in November 1999. Until then she had not been concerned that the husband would do anything to harm her, and that his having access to her credit card was not a concern. She trusted that at any time it was necessary to use the card it would be for family purposes. In the light of the Department's emphasis on the ability of each of them to access the other's credit card, the applicant asked the husband to surrender her card. This he did the following day, after incurring a debt of $3,000 for a new television and DVD unit for Ellenor. The debt remains and the applicant has total personal debts of $10,000.
The applicant gave evidence that since November 1999 she has grown emotionally and financially. She is gradually paying off her debts. The mortgage on the home is between $48-49,000, and the value has risen from $120,000 in 1999 to about $180,000 now. She says that when the property reaches a value of $250,000, she will be able to force a sale, and be financially independent, or buy out the husband's interest, but this could take 5 years, and until she can afford to buy him out she will remain, and hope that eventually his desire to buy a yacht, or a share of a yacht, will induce him to force the sale or sell his interests.
The SSAT accepted that the applicant and the husband were jointly responsible for Ellenor, and that they both acknowledged some benefit to Ellenor in their ongoing co-habitation, but on the applicant's evidence, she and the husband do not share responsibility for Ellenor, and the applicant's relationship with Ellenor is strained. The applicant gives her $50 a week, and will not divulge to Centrelink her current income and thus, on the applicant's evidence, Ellenor cannot receive any Centrelink benefit while at University. The applicant says also that she had told Ellenor to leave the home and to find her own accommodation.
The applicant gave lengthy evidence as to the aspects of the marriage, which, in her submission, indicates that there is a separation under the same roof. I accept her evidence that she had adopted a change in attitude to the husband since her return to the home in November 1999. She had hardened in her resolve to, in effect, "outlast" him, in order to obtain what she sees as her just share of the home; but taking into account the whole of the evidence, the parties' submissions, and having regard to all the matters referred to in section 4(3) of the Act, I consider, however, that the day-to-day relationship, although strained, has returned to the routine, which prevailed before February 1999, albeit with some changes to the "ground rules", which continues to this day.
The applicant maintains that the only reason she stays in the home is to ensure her financial future, and that she and the husband have no commitment to each other, nor would it seem, to Ellenor. They remain in the relationship rather than separating and establishing a new life. I am satisfied, on the evidence, that the relationship, which must be described as less than satisfactory, provides security. The applicant and the husband can remain in their jointly owned home, contribute equally to the mortgage, and continue to live their separate lives, as they have for many years, and neither of them has to find alternative accommodation.
I am satisfied, on the evidence, that the applicant should be treated as a member of a couple, for the purposes of the Act, since the end of November 1999. I am satisfied on the evidence, and find as a fact, that as at 1 December 1999 the applicant was a member of a couple.
For these reasons the Tribunal affirms the decision under review.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date of Hearing  7 June 2002
Date of Decision  7 June 2002
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr R Kilderry
Solicitor for the Respondent    Centrelink