Cohen; Secretary, Department of Employment and Workplace Relations

[2006] AATA 633

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2006] AATA 633

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1287

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And DEBBIE COHEN

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date  26 June 2006

Date of Written Reasons  18 July 2006

Place  Sydney

Decision   The decision under review is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – marriage like relationship – debt for closed period – financial aspects – exchanging rent for maintenance - sharing a house – purchasing furniture – peripheral involvement in a business – separate bedrooms and access while sharing a house – both parents devoted to son – no ongoing romantic relationship – commitment to each other is not the commitment of a couple in a marriage like relationship – decision affirmed

LEGISLATION
Social Security Act 1991, s 4

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

WRITTEN REASONS FOR ORAL DECISION

Senior Member, Mrs Josephine Kelly   

1.      This is my decision in the matter of Secretary, Department of Employment and Workplace Relations and Debbie Cohen (“Mrs Cohen”). 

2.      The decision under review is that made by the Social Security Appeals Tribunal on 29 August 2005, which set aside the decision to raise and recover debts of Parenting Payment Single, Family Tax Benefit and Child Care Benefit and substitute a new decision, that there is no debt and Mrs Cohen was not a member of a couple during the period 17 October 2002 to 28 May 2004.

Issue

3. The issue in this case is whether the original decision to raise and recover the debt of $18,928.26 in relation to the Parenting Payment Single, Family Tax Benefit and Child Care Benefit was correct. This is set out in the statement of facts and contentions relied upon by the Secretary, who is the applicant in this case. This matter turns on whether Mrs Cohen was in a marriage-like relationship with Mr Gordon Brelsford (“Mr Brelsford”) during the period 17 October 2002 to 28 May 2004. The definition of "member of a couple" is in section 4(2) and the aspects to be considered in forming an opinion about the relationship is in section 4(3) of the Social Security Act 1991.

4. In brief, section 4(3)(a) refers to the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; (d) any sexual relationship between the people involved; (e) the nature of the people's commitment to each other; and in respect of each of those matters there are various subsections which I do not read for the purposes of giving this decision.

5.      The case for the Secretary relied on the following matters: 

Financial Aspects

6.      The Secretary relied on the intertwining of Mrs Cohen's and Mr Brelsford's financial affairs. There was evidence that Mr Brelsford pays a mortgage in relation to two properties in which Mrs Cohen has lived, that is, Samuel Circuit and also Michael Street. It is necessary to understand that Mrs Cohen has five children by four fathers. She had her oldest child, then she had two children by her husband whom she separated from in 1997 and divorced some years later, another child by another man and her last child is a child whose father is Mr Brelsford. That child was born on 14 February 2001.

7.      Coming back to the financial aspects of the relationship between Mrs Cohen and Mr Brelsford, the first matter relates to the payments of the mortgage in relation to both Samuel Circuit and Michael Street. The second matter was in relation to the purchase of a lounge on a credit card owned by Mr Brelsford and the third matter was Mrs Cohen's involvement in Mr Brelsford's business, "Fashion Attack". I'll deal with each of those in turn. 

8.      In relation to the rent payments and the maintenance arrangement which Mr Brelsford and Mrs Cohen alleged, the matter was not straightforward but I do accept their evidence. Their evidence was that the maintenance payments which Mr Brelsford was paying for their son  were balanced by payments of rent by Mrs Cohen to Mr Brelsford. Essentially the rent and maintenance were of equal value so Mrs Cohen resided at the property and Mr Brelsford did not pay maintenance.  Initially they seemed to pay each other, that is Mrs Cohen paid Mr Brelsford rent and then he paid her the a maintenance, but then they determined, after some time, that he would just pay her the maintenance that was the difference between what she owed him for rent and what he owed her for the maintenance.

9.      In relation to the purchase of the furniture, Mrs Cohen and Mr Brelsford explained how the lounge was purchased. It was purchased on Mr Brelsford’s credit card.  Mr Brelsford thought that this was appropriate as he wished to have better furniture in the house considering it was his property and also that his child lived there. I accept the evidence that Mrs Cohen started to pay it off, initially directly off the card but fell behind in her payments and thereafter paid Mr Brelsford a lump sum in the order of $1,000, and that the sofa or lounge is now hers.

10.     In relation to the business "Fashion Attack" one can understand the Secretary's view in relation to that because "Fashion Attack" was the name of a  party plan business that Mrs Cohen had had until, as I understand it, the birth of her fourth child. However, then she stopped that business and in fact, Mr Brelsford's evidence was that "Fashion Attack" was the second name that he nominated in his business name registration and that was the one that he got. His first choice of business name was "All Seasons Fashions"

11.     There was evidence about the nature of the business that Mr Brelsford undertook. It was buying, essentially women’s and children’s clothes with some venture into men’s jeans which proved unsuccessful. He had various female friends, including Mrs Cohen, assisting him in purchasing from factories in inner Sydney and then selling it at various markets, principally Dapto markets and sometimes Wollongong. He had had no previous knowledge of the fashion industry and it seems that, perhaps as the Secretary did concur, that Mrs Cohen was providing input in relation to getting that business up and running. 

12.     However, I do accept the evidence that it was Mr Brelsford's business. That is supported in my view by the fact that he has, in fact, had two clothing shops since that time as well, where clothing has been the item that he has sold. So in my view, although I can understand the Secretary's drawing the inference that it was in fact, Mrs Cohen's business, I do accept the evidence of Mrs Cohen and Mr Brelsford in relation to that business and find that Mrs Cohen had some peripheral involvement in it but that it was Mr Brelsford's business.

Nature of the Household

13.     In relation to the nature of the household, the first matter that the Secretary relied upon was the fact that Mr Brelsford helps look after his son. On the evidence as I understand it, Mr Brelsford is indeed very concerned and cares for his son as much as he can given that he is a shift worker. He picks him up from pre-school sometimes, takes him if he can, and on occasions has taken Mrs Cohen's children home as well. In relation to their sharing a bedroom, that only seems to have arisen in relation to the Michael Street property which was the second property that Mr Brelsford purchased and which he now owns. He explained the reason for purchasing both Samuel Circuit and Michael Street. 

14.     In relation to Mrs Cohen going into Samuel Circuit, he said that she was living in a unit and given that Tyson was his son he felt it was better if a family of five children and a mother were living in a larger home. When he later bought Michael Street, that house had five bedrooms of its own plus another bedroom which he constructed by walling off part of a garage. In relation to that arrangement I accept their evidence again, that is that he did live in the converted garage and had access to a shower, toilet and laundry facilities by an external access.

15.     I accept his evidence that he was not involved in the household as such. Given that Mrs Cohen had five children from four different fathers I accept Mr Brelsford's evidence that he took no part in the household itself but rather kept to himself and had a relationship with his son and Mrs Cohen, in that she was the mother of his child. I also accept the evidence that he moved out of the Michael Street premises because of an altercation with Mrs Cohen's oldest son. 

Social Aspects and Sexual Relationship

16.     In relation to their social activities I accept the evidence again of Mrs Cohen, Mr Brelsford and friends who have provided statements or letters to the Tribunal, that they were part of a group of people. They did not have a romantic or ongoing romantic relationship although they have become the parents of a child.  Mrs Cohen it seems, in my view has been very busy looking after the five children and perhaps has not had a great deal of time to develop other relationships. So in terms of the sexual relationship my finding is that there has not been an ongoing sexual relationship since their son was conceived. 

Nature of Commitment

17.     In relation to the commitment aspect of the case it is my view,, as I have already foreshadowed, that Mr Brelsford is committed to his son as is Mrs Cohen.  However, that commitment is not reflected in a commitment to each other in the terms of a marriage-like relationship.

Conclusion

18.     Therefore, taking all into account all the matters and the particular factual matters relied upon by the Secretary, that is their living arrangements, the payment of rent, the purchase of the furniture, Mrs Cohen's involvement in "Fashion Attack", the nature of their household, their son, the social aspects, their sexual relationship and the nature of their commitment, I am satisfied that during the relevant period, Mrs Cohen was not in a marriage-like relationship with Mr Brelsford.

19.     Accordingly I affirm the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  23 June 2006
Date of Decision  26 June 2006
Date of Written Reasons          18 July 2006
Advocate for the Applicant       Centrelink Legal Services
Solicitor for the Respondent     Illawarra Legal Centre