Diane Scott and Secretary, Department of Social Services

[2014] AATA 408

[2014] AATA  408

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5393
Re	Diane Scott
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	23 May 2014
Date of written reasons	24 June 2014
Place	Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the Decision of the Social Security Appeals Tribunal dated 25 September 2013 and in substitution the Tribunal finds that Mr Sean Scott and Mrs Diane Scott were:

(i)         not living separately and apart from each other on a permanent or indefinite basis from 14 June 2012 to 31 August 2013; and

(ii)        living separately and apart from each other on a permanent or indefinite basis from 1 September 2013.

...........................[SGD].............................................

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY—Parenting Payment—Whether Parenting Payment should be paid at the single rate—Whether there was a marriage-like relationship during the relevant period—Whether the Applicant was living separately and apart from her husband on a permanent or indefinite basis

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 37

Social Security Act 1991 (Cth) – s 4(3)

REASONS FOR DECISION

Senior Member A K Britton

24 June 2014

EDITED EXTRACT OF TRANSCRIPT

1. Ms Diane Scott seeks review of a decision made by an authorised review officer and affirmed by the Social Security Appeals Tribunal, to reject her claim for Parenting Payment calculated at the single rate, lodged with Centrelink on 14 June 2012. She was granted Parenting Payment at the single rate on 3 October 2013, when she moved out of the family home.

2. Whether Ms Scott was entitled to receive Parenting Payment at the single rate during all or part of the period, commencing from when she made her claim for Parenting Payment at the single rate and ending when she moved out of the family home (the relevant period), depends on whether she was a “member of a couple” within the meaning of section 4 of the Social Security Act 1991 (Cth) (the Act). Ms Scott will be a member of a couple within the meaning of the Act if, in my opinion, she was not living separately and apart from her husband on a permanent or indefinite basis. In forming that opinion, I must have regard to the matters listed in s 4(3) of the Act, which include:

   ·the financial aspects of the relationship;

   ·the social aspects of the relationship, including whether other people see the relationship as a marriage-like relationship;

   ·the nature of the household;

   ·the sexual relationship between herself and her then husband;

   ·the nature of the couple's commitment to each other.

   Background facts

3. Ms and Mr Scott married in 1998 and migrated from South Africa to Australia with their two children, who are now in their early teens, in December 2008. According to Ms Scott, the marriage had been unhappy for some time, even while she was living in South Africa, and throughout the marriage she bore most of the responsibility for the household and the children. 

4. As stated at the commencement of today’s proceedings, in my view the evidence indicates a progressive separation throughout the relevant period.

5. In a letter to Centrelink dated 20 June 2012, Ms Scott claimed that she and her husband had been living almost separate lives since October 2011: he was not there for her emotionally; she had primary responsibility for the care of the children and the household; he had been mentally abusive for some time. She wrote that “over the period,” which I take to mean October 2011 to 5 June 2012, she decided to see if her husband wanted to “fight for her” and "our life together." On Ms Scott’s account after receiving advice from Centrelink, on 5 June 2012, she and her husband agreed to separate but remain living together for the next six months to enable them pay off their debts. In evidence she outlined the financial arrangements within the family unit at that time: Mr Scott’s wages and all Centrelink payments went into a joint bank account; her wages were paid into her personal account. She had responsibility for managing the payment of all household bills and access to, and control of, all passwords and codes for the joint and other accounts.

6. After being notified of the decision made by Centrelink not to pay Parenting Payment at the single rate, Ms Scott wrote to Centrelink on 4 September 2012, and repeated much of the information contained in the 20 June 2012 letter. In addition she claimed her husband had moved into his own room and has his own bathroom. She wrote that they took turns cleaning the living areas and gardening. She also wrote that she and her husband were living very separate lives, and “are hoping to be in a separate home at the end of the year”. 

7. In an interview with an authorised review officer apparently conducted on 4 December 2012, Ms Scott claimed the position in respect of joint finances continued: she and her husband paid their wages into the joint account; they had no plans to sell the family home; they now had separate living areas and all domestic arrangements were separate. She repeated that her husband was in a separate bedroom. She stated:

   she had no immediate plans to move out

   she was looking at rentals but did not think she and her husband could live separately because of their finances

   her children and family were all now aware of the separation

   she and her husband had no immediate plans for divorce because of concern over the children and the finances.

8. The Social Security Appeals Tribunal (SSAT) heard Ms Scott's application for review on 25 September 2013. In reasons published on 4 October 2013, the SSAT recorded that at that point:  Ms Scott, Mr Scott and the children were living in the family home; there was a plan for Ms Scott to move into a unit and share with a friend; it was intended that when that occurred the care of the children would be split 50-50. The SSAT also recorded that Ms Scott had been financially supported her husband for the past eight months while he was unemployed; during that period she assumed responsibility for mortgage payments; and, all Centrelink payments were now paid into Ms Scott's personal account. While not recorded in the SSAT’s reasons Ms Scott testified in these proceedings that she told the SSAT that she had plans to move into accommodation with a friend on 4 October 2013. Documents tendered by Ms Scott in these proceedings confirm that the tenancy commenced on 4 October 2013. Documents including Annexure R to the statement provided by Ms Scott (Exhibit A1) also indicate that prior to the SSAT hearing there were firm plans in place for Ms Scott to move into the property in Warriewood where she continues to live to this day. I accept Ms Scott’s account.

   Was Ms Scott living separately and apart from Mr Scott on a permanent or indefinite basis throughout the relevant period?

9. In determining the central question, namely, whether Ms Scott was living separately and apart from Mr Scott on a permanent or indefinite basis, throughout the relevant period, I must have regard to the matters listed in s 4(3) of the Act. That list is non-exhaustive. Consideration must also be given to any other matters relevant to that question, together with the total picture of the relationship that emerges from these factors. The Act gives no guidance about the relative weighting to be given to these factors. Rarely, if ever, will a single matter be determinative. Whether Ms Scott was living separately and apart from Mr Scott on a permanent or indefinite basis can only be decided after assessing the totality of the evidence.

10. Insofar as the factors listed in section 4(3) of the Act are relevant in this case, I make these observations.

    Financial aspects of the relationship

11. Consideration must be given to various matters including joint ownership of real estate, pooling of financial resources, legal obligation owed by the purported members of the couple, and the basis of sharing of day-to-day household expenses.  

12. The evidence indicates that the main asset of any significance held by the Scotts was a 35 per cent share in the family home. The balance was owned by Mr Scott's uncle. Responsibility for the payment of the mortgage was apparently shared by the Scotts until Mr Scott became unemployed in late 2012. At that point Ms Scott became the family’s sole breadwinner and took on total responsibility for payment of the mortgage. I accept her evidence that she had little option but to step up and take responsibility for the mortgage, because to do otherwise could have jeopardised her ability to obtain credit in the future, and also she needed to ensure accommodation for herself, her children and her husband.

13. In summary it would appear that there was joint sharing of all household expenses and the couple’s major liability, the mortgage, until Mr Scott became unemployed. From then on Ms Scott bore responsibility for payment of all of the family’s expenses.

14. Also relevant to the assessment of the financial aspects of the relationship is the high degree of trust that existed between Mr and Ms Scott throughout the relevant period. Ms Scott had control over the household’s finances and sole access to all accounts, relevant passwords, etc.

15. Relevant to the financial aspects of the relationship is the intention of the Scotts to remain together. Ms Scott testified that in June 2012, when she finally decided to separate from her husband and that the relationship was at an end, she had no option but to remain living in the family home because of the financial circumstances. Apparently at that time, the Scotts had a credit card debt of about $10,000 in addition to the not insignificant mortgage over the family home. In addition Ms Scott owed a small debt to Centrelink. I accept that at that point in time, Ms Scott had formed the view that the relationship was at an end, but decided to continue living in the family home because of the financial circumstances and her concern, accepted by the respondent Secretary, that any change in the marital relationship might impact upon the children.

16. Mr Scott’s understanding of the circumstances that existed in mid-2012, is largely unknown. Ms Scott's evidence was to the effect that her preference, at least initially, was for Mr Scott to leave the family home and find alternative accommodation. He apparently resisted this proposition, and while not entirely clear, it would appear that by early 2013 Ms Scott had concluded that if she and Mr Scott were to live apart, it would fall to her to make the move. She accepted, however, that while her husband was unemployed, that is, between December 2012 and September 2013, she had no option but to remain living in the family home, because she was obliged to support him and the children and could not also afford to pay for separate rental accommodation.

17. While the evidence is less than clear in my opinion it can safely be said that, by at least July 2013, Ms Scott had taken active steps to explore alternate accommodation options. That is consistent with Exhibit A1, Annexure I, which indicates that in late 2013 she had registered an interest in rental accommodation with local real estate agents. While not the easiest task, I find that a firm decision was made by Ms Scott to move out of the family home around the time, to use her words, “things came together”: Mr Scott found employment (apparently sometime in August 2013) and she was offered the opportunity to share a house with the mother of a friend of her son. I find that decision was made in or around 1 September 2013.

    Nature of the household

18. I accept Ms Scott's evidence, that she largely shouldered primary responsibility for the care of the children, although it would appear that Mr Scott helped out with transporting the children to and from school, in the period when he was unemployed. I also accept Ms Scott's evidence that throughout the relevant period, the pattern which had become entrenched prior to June 2012, where she shouldered most of the responsibility for the housework, continued. I note that there is some conflicting evidence on this issue and it may well be that at various times there was some minor changes to these domestic arrangements. Ms Scott's evidence was to the effect that in or about September 2012, she had words with Mr Scott and told him it was about time he “stepped up” which precipitated some changes to the domestic arrangements.  It may be that for the period that Mr Scott and Ms Scott lived in the same house and Mr Scott was unemployed, he took a slightly greater role in household activities.

19. Another issue relevant to determining whether Ms Scott was a “member of a couple” is the extent to which the family dined together. Again there is conflicting evidence. It would appear that there was no significant change after June 2012. Ms Scott testified that that by and large, she and the children ate meals together without Mr Scott.

    The social aspects of the relationship

20. This requires evaluation of whether, among other things, the parties held themselves out as married to each other.

21. Relationship with official bodies. Apart from the disclosure to Medicare on 26 June 2012 made by Ms Scott, there is no evidence that either party advised any organisation with which they had dealings — banks, life insurance, schools — that they had separated. The only other evidence of the parties not holding themselves out as a couple to official bodies, was the disclosure made by Ms Scott to the family doctor in June 2012.

    The assessment of friends and regular associates about the nature of the relationship.  

22. As noted the Scotts moved to Australia in 2008, and not surprisingly, did not have a wide circle of friends, though Mr Scott had some family in Australia including the uncle who was the part-owner of the Scott’s family home. According to a neighbour who lived near the Scotts in late 2009: Ms Scott largely operated as a single mother and had no support from Mr Scott; Ms Scott confided in her that she and Mr Scott had separated in about mid-2012 and that she was very unhappy in the relationship. Ms Tina Harding, who met Ms Scott in 2010, gave a statement to the same effect. Relatives who lived with the Scotts for a couple of months from 2011, also stated that they observed a degree of unhappiness between the parties.

    Plans for engaging in joint social activities

23. The evidence indicates that the Scotts attended their children’s’ sporting events, together. The evidence, provided by the friends and neighbours of Ms Scott, is that her social supports were outside her relationship with Mr Scott. Apart from family functions, such as the family lunch in Christmas 2012 and their children’s sporting activities there is no evidence of the Scotts socialising together.

    The sexual relationship between the Scotts  

24. I accept the claim made by Ms Scott there has been no sexual relationship since 2011.

    Nature of the Scotts' commitment to each other

25. The Scotts had been married for about 14 years at the start of the relevant period.  In respect of companionship and any emotional support provided to each other, Ms Scott claimed that while for the sake of the children she maintained an amicable relationship with her husband, since October 2012 and probably earlier, neither provided the other with any form of companionship or emotional support. Mr Scott's view is unknown and indeed, to the extent anything can be gleaned from Annexure B to Exhibit A1, which is said to be a transcript of a text message sent from Mr Scott to Ms Scott in early 2013, it suggests that Mr Scott was somewhat blind to what Ms Scott regarded as their companionless and loveless relationship. His view of what companionship or emotional support was provided to him from Ms Scott is unknown.

26. Relevant to the factor of whether the Scotts considered their relationship was likely to continue indefinitely in a marriage-like relationship is that, by the end of the relevant period, Ms Scott had only recently taken steps to divorce Mr Scott. The current position is unclear. It seems to me that a pragmatic decision was made by the Scotts to remain married “on the papers” for the purpose of attaining Australian citizenship. That said, I accept Ms Scott's claim that she considered that the relationship with her husband had irretrievably broken down, at least by September 2012 when she made the decision to move to her daughter's bedroom. As to whether the Scotts saw their relationship as married-like I accept that Ms Scott probably did not see her marriage in that way, from June 2012. Precisely what Mr Scott thought of the relationship, again, is unknown.

    Conclusions

27. The task of forming an opinion about when any couple were living separately and apart from each other on a permanent and indefinite basis is difficult, and this case is no exception.

28. Although the respective views of the parties about the nature of their relationship is relevant, it is not determinative. I also agree with the submission made by Ms Scott that cohabitation is not determinative.  That she remained in the family home with Mr Scott throughout the relevant period, while a relevant factor, is not determinative of the question of whether she was living separately and apart from Mr Scott on a permanent and indefinite basis.

29. I also make this observation: that there are a number of inconsistencies in the evidence. As the solicitor for the Secretary pointed out, these include the account apparently given by Mr Scott in December 2013, that he was living in the granny flat attached to the family home (T23 of the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth)). Ms Scott self evidently is not an independent witness and has an interest in a favourable outcome in these proceedings. However in my opinion she attempted to give truthful evidence. While I have not accepted all aspects of her evidence, any conflict between the evidence she gave in these proceedings and the account she gave to Centrelink and other persons over the relevant period, is probably attributable to the passage of time and the fallibility of memory.

30. I accept the marriage was not a happy one, at least in Ms Scott’s eyes throughout the entirety of the relevant period. I also accept that she concluded in mid-2012, or possibly September 2012, that the relationship was at an end, although because of a combination of circumstances, which included the absence of support networks in Australia, it was not until about -2013 that she was in a position to realise her desire to move out of the family home.

31. While Ms Scott’s view of the relationship weighs in favour of a finding that the Scott’s were living separately and apart, the high level of financial cooperation between the two and Ms Scott's selfless act in continuing to support her estranged husband throughout the period he was unemployed, tends to suggest that the parties were not living separately and apart on a permanent or indefinite basis.

32. Ms Scott made a powerful submission that when her husband became unemployed she had little option but to support him and to remain in the family home. I accept that proposition. However the question to be asked is: in the circumstances that existed at that time what do the financial aspects of the relationship indicate? The inescapable conclusion is that this indicates a high level of financial interdependence and cooperation, and a high level of trust, between the parties.

33. I think the balance of factors point to the Scotts not living separately and apart from each other on a permanent or indefinite basis, up until the point in time where Ms Scott decided to act on her desire to move out of the family home. As I indicated, it is difficult on the available evidence to identify precisely when that occurred, but I think it was probably or about 1 September 2013. I think this is of some significance because it indicates that Ms Scott's desire to live separately and apart from her husband had moved beyond being just a hope and into a reality. For that reason, I find that she was living separately and apart from Mr Scott within the meaning of s 4 of the Social Security Act 1991 from 1 September 2013. The reviewable decision is set aside and I find that Mr Scott and Ms Scott were living separately and apart from each other on an indefinite basis from 1 September 2013.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

...............[SGD].........................................................

Associate

Dated 24 June 2014

Date(s) of hearing	23 May 2014
Applicant	In person
Solicitors for the Respondent	Cameron Hutchins, Australian Government Solicitor