Edmunds and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 495
•2 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 495
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/0339
GENERAL ADMINISTRATIVE DIVISION )
ReEdwin Edmunds
Applicant
AndSecretary, Department of Families, Housing, Community Services and Indigenous Affairs
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date2 July 2009
PlaceSydney
DecisionThe decision under review is set aside.
...............[sgd]...............................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – special benefit – whether applicant member of a couple – whether marriage-like relationship – financial arrangements between parties – social aspects of relationship – nature of household – sexual relationship – commitment – decision under review is set aside
RELEVANT ACT
Social Security Act 1991 (Cth) – ss 4, 503, 1068A, 1068B
CITATIONS
Cullinane v Secretary, Department of Family and Community Services [2004] AATA 789
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Ford v Secretary, Department of Family and Community Services (2003) 72 ALD 718
Re Secretary, Department of Family and Community Services v WAP [2000] AATA 7
Re SRWW v Secretary, Department of Family and Community Services [2001] AATA 495
REASONS FOR DECISION
2 July 2009
Ms N Isenberg, Senior Member
DECISION UNDER REVIEW
1. Decision of the Social Security Appeals Tribunal (SSAT) made on 9 December 2008, affirming a decision made by Centrelink on 16 May 2008, that Mr Edmunds is a "member of a couple" for the purposes of the Social Security Act 1991 (Cth).
BACKGROUND
2. Mr Edmunds lodged a claim for special benefit on 14 May 2007 with which he provided a statement noting his separation on 8 April 2007 from Ms Mynhardt, with whom he had lived since their arrival from South Africa in 2002. Mr Edmunds was granted special benefit at the single rate. In March 2008, in a Partner Details form (Mod P) lodged with Centrelink, Ms Mynhardt described their relationship as “de facto”. After investigation, Centrelink cancelled Mr Edmunds’ special benefit. That decision was affirmed on internal review and by the SSAT.
LEGISLATION
3. Special benefit is a discretionary payment, that is payable to those who are not entitled to other income support payments under the Social Security Act 1991 (Cth) (“the Act”). The Act contains calculators to determine at what rate a person is to be paid certain benefits. Section 1068A of the Act is relevant if the person is not a member of a couple, or, section 1068B if the person is a member of a couple (section 503).
4. Section 4(1) and 4(11) of the Act provide that someone is “partnered” if he or she is a “member of a couple”. The term “member of a couple” is further defined in subsection 4(2) of the Act as including someone who is in a “marriage like relationship” with a person of the opposite sex. In order to determine whether someone’s relationship is “marriage like” subsection 4(3) of the Act states that all of the circumstances of a relationship must be considered, including the following:
4(3)
(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
ISSUE BEFORE THE TRIBUNAL
5. The only issue before the Tribunal is whether Mr Edmunds was a “member of a couple” as defined in section 4 of the Act for the purpose of calculating his entitlement to special benefit from 6 May 2008.
THE EVIDENCE
6. Mr Edmunds and Ms Mynhardt both gave evidence.
7. They arrived in Australia from South Africa in May 2002 and lived in Mosman. Mr Edmunds worked at a health club and Ms Mynhardt worked as a nurse at Royal North Shore Hospital. In early 2007, Mr Edmunds was made redundant and they went on a campervan trip to Tasmania, intending to travel around Australia. Even at that time, they had no sexual relationship; Ms Mynhardt saying that they had “not been living as a married couple” since about 2004. Things “fell apart” on the trip. Ms Mynhardt said Mr Edmunds was abusive because, she thought, he was in a lot of pain. She decided to leave him “for good” because he was too domineering and arrogant. The trip was cut short and Ms Mynhardt left him in Tasmania. At the time Mr Edmunds did not know, but Ms Mynhardt returned to her family in South Africa, having disposed of everything she had here.
8. Mr Edmunds continued travelling until, in December 2007 his son asked him to housesit for a month. At about that time Ms Mynhardt decided to return to Australia because she had been unable to get permanent work in South Africa. Mr Edmunds and Ms Mynhardt had had no contact (other than one text message) while she was away but Ms Mynhardt decided to contact Mr Edmunds prior to her return. As Mr Edmunds’ son’s house had four bedrooms, he offered a room to Ms Mynhardt as she had no job and nowhere to stay. Because they had broken up before she had returned to South Africa there was no consideration of reconciliation.
9. Within a few weeks, Ms Mynhardt had secured a job at Port Kembla Hospital. Mr Edmunds helped her move there, intending to tour around the south coast in the campervan. Anyway, because his son was returning from overseas and the accommodation at his home would no longer be available, he had nowhere else to live. Ms Mynhardt had accommodation in the nurses’ quarters but because it was holiday season Mr Edmunds had difficulty getting into a caravan park. A room was free in the hospital hostel for $42 a week and he decided to stay there, although he did not really like it because it had a communal bathroom and kitchen.
10. After a few weeks, Ms Mynhardt decided she wanted to stay in the area and decided to lease a two-bedroom townhouse. Mr Edmunds asked if he could come too because it would be cheaper than a caravan park and he could pay half the expenses. Also, by that time, he realized that he needed some consistent medical care that could not be provided if he continued travelling. Returning to his son’s home was not an option. By that time Mr Edmunds’ special benefit had been cancelled and Ms Mynhardt said she felt she had no option but to help him.
11. The townhouse was unfurnished and Ms Mynhardt bought all the furniture. Mr Edmunds had no say in what was purchased; he had no money to contribute so “could not afford to have an opinion”. They each have a bedroom and he has his TV in his room.
12. Ms Mynhardt has paid all the bills and Mr Edmunds contributes nothing because he has no money; she has been supporting him. He has a very small pension from South Africa – about $80 per month, and most of that goes on petrol for the campervan. Ms Mynhardt leaves money for him to do some shopping while she is working. He does his best with respect to the household chores. Sometimes he cooks for both of them when she is working. She washes the clothes and he does the dishes.
13. They said they rarely go out together. If they do, it is to a club and Ms Mynhardt pays. Ms Mynhardt is a keen swimmer and walker and Mr Edmunds, because of his shoulder, hip and back conditions, is unable to participate and those activities do not interest him. In any event, he prefers to read. Because Ms Mynhardt is a nurse she provides some advice about his medical conditions and supervises his medication.
14. They have no joint accounts or credit cards, although when Ms Mynhardt went to South Africa for three weeks for her son’s wedding she left a credit card with him “in the event of unforeseen circumstances”, and because he would have nothing to live on. They each have wills and the beneficiaries are their respective children. She has “put him” as a beneficiary of her (very small) superannuation because she has no family in Australia and he is under instruction to distribute it to her children overseas. Her intention is to return to South Africa when she stops work. He, on the other hand, never wants to return to South Africa to live and is an Australian citizen.
15. Mr Edmunds’ sons, with whom he has limited contact, were never happy about him having a friend of the opposite sex, but they were courteous towards Ms Mynhardt on the rare occasions they previously saw her. She does not have a grandmotherly role with respect to his grandchildren, nor he with hers. He has few friends and provided statements from two: Mr Caldwell and Ms Mehang who wrote that, from their observations, Mr Edmunds and Ms Mynhardt are companions only. Once or twice he and Ms Mynhardt saw their neighbours together but usually they see the husband and wife separately. Ms Mynhardt said a lot of people know they are just friends, and provided a letter from her confidante, Peggy. Neither of them have many friends in Australia.
16. Mr Edmunds said he very much values Ms Mynhardt’s companionship, but there is no long-term association planned. He thought both feel free to go their separate ways, but he is not in a financial position to go anywhere. He owes Ms Mynhardt a lot of money but she has made no demands although he thought she was getting “fed up” with keeping him. Ms Mynhardt thought Mr Edmunds sees himself as a burden and that his self-esteem is affected by having to live off a woman’s charity. He described it as “gut-wrenching to be beholden to her”. Ms Mynhardt said she does not see how she can continue to support him, as she needs to provide for herself for when she can no longer work. She would prefer that he left and went off in his campervan and she felt that when his special benefit was taken away, it was her fault. She said she just could not “throw him out” because he had provided emotional support to her when she was under stress when her mother and children were in crisis. She does not love him. She regarded him as something of a father figure – she is 62 and he is 74 – having taken up with him after financial ruination that had ensued following her husband’s tragic death.
17. For reasons that are unclear, Mr Edmunds said that he and Ms Mynhardt were asked by Centrelink to complete the Partner Details in March 2008. The only options were “married” or “de facto”. As they were not married, it was “de facto” although that was not a term that is commonly used in South Africa. Ms Mynhardt said she had never filled out any Centrelink forms before and could not explain why she described their relationship that way. Ms Mynhardt did not answer the question: “What date did you start to live together” because they were not “living together”.
18. On 7 April 2008 Mr Edmunds contacted Centrelink. The file notes state “cust stes that they reconcilled 14/12/07 but they have never lived together”. In that conversation he advised his address – and it was different to that provided by Ms Mynhardt, as to room number.
19. On 13 May 2008 Mr Edmunds attended Centrelink to advise he and Ms Mynhardt were “good friends” and that she did not support him. On 15 May 2008, Ms Mynhardt wrote that their relationship had broken down when she had returned to South Africa. They had now settled into a happier companionship in which they “lived separately and shared costs”.
CONSIDERATION OF THE EVIDENCE
20. The concept of a “marriage-like relationship” under the Act was discussed in ReSRWW v Secretary, Department of Family and Community Services [2001] AATA 495 at [61], where the Tribunal noted that each matter is to be considered on its merits and that the Tribunal should remain flexible in its approach:
The Tribunal notes that each individual case must be considered on its merits and in today's world, the indicia of a marriage or a marriage-like relationship and being a member of a couple has very different connotations, depending on the circumstances of the couple and the context in which their relationship occurs. It behoves decision-makers to look at the merits of the individual case and to be flexible in its findings about such matters.
21. In Pelka v Secretary, Department of Family and Community Services(2006) 151 FCR 546 at 555 [46], French J (as his Honour, the Chief Justice, then was), referring to section 4(3) of the Act, said that the decision-maker:
… must undertake the preceding consideration [i.e. in relation to section 4(3)] bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.
22. In Re Secretary, Department of Family and Community Services v WAP [2000] AATA 7, the Tribunal said that the provisions of section 4(3) of the Act provide objective criteria for determining if a person is a member of a couple. However, as there is no guidance as to how much weight is to be attributed to each criterion, it falls to the Tribunal to consider all of the circumstances of the relationship and what weight is to be accorded to those circumstances.
23. The issue of how two cohabitating persons view their relationship, based on their mutual or individual perceptions of what constitutes a “marriage like relationship”, is not determinative. The test is an objective one, having regard to the legislation and facts of the particular case. In this context the Tribunal said in WAP (at paragraph 12):
The Tribunal is sympathetic with WAP when she takes the view that one cannot be in a marriage-like relationship (and therefore not a member of a couple) unless the couple provide each other with emotional support and share everything including financial obligations. However, whilst that no doubt is an acceptable description of the phrase as it is commonly understood, although not exhaustive, it is not the relevant statutory test. Therefore, in getting to its decision the Tribunal finds it necessary to work through the statutory criteria in s4(3) of the Act and consider all the relevant circumstances of this case.
24. In Cullinane v Secretary, Department of Family and Community Services [2004] AATA 789 at [16] Senior Member McCabe observed that:
Application of the criteria [in section 4(3) of the Act] will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.
And at [22]
There are aspects of this relationship that are certainly unusual if one thinks of marriage in a narrow way. The legislation does not do that: it is important not to approach the definition with a fixed view of what constitutes a marriage.
25. As to the indicia of a “marriage like relationship” in section 4(3) of the Act, there is no one feature in Mr Edmunds and Ms Mynhardt’s relationship that stands out as dictating a conclusion. I have reached my conclusion from the totality of the evidence.
26. The statutory criteria are considered below, having regard to the evidence before me.
FINANCIAL ASPECTS OF THE RELATIONSHIP
27. The financial arrangements between Mr Edmunds and Ms Mynhardt are simple: she supports him because, in the absence of special benefit, he has no means of support. It is not a matter of pooling resources as Centrelink contends, because he has no resources to pool, other than his modest South African pension. She permitted him access to her credit card while she was overseas in case he had need of money. Otherwise, he has no access to her account and relies on her supplying cash.
28. They have no assets or debts together. They are not beneficiaries of each other’s wills, although Mr Edmunds is a beneficiary of Ms Mynhardt’s superannuation because he resides in Australia whereas her children do not.
NATURE OF THE HOUSEHOLD
29. Mr Edmunds and Ms Mynhardt have not “lived together at all relevant times” since her return to Australia in November 2007, as Centrelink contended. I accept their consistent evidence as to the circumstances whether they lived, first at Mr Edmunds’ son’s home, and later at the nurses’ hostel at Port Kembla, at both locations in separate rooms. They live together at the townhouse, but again, in separate rooms. Ms Mynhardt covers all living expenses, including rent, because in the absence of special benefit, Mr Edmunds cannot share expenses as had been planned. Mr Edmunds undertakes some household tasks such as shopping and cooking. I accept this to be his contribution to the household, given that he can provide no financial input.
SOCIAL ASPECTS OF THE RELATIONSHIP
30. Both Mr Edmunds and Ms Mynhardt described their relationship as that of “companions”, and that is the observations of their neighbours. The T documents also include a letter from Mr Edmunds’ former employer, Mr Andrews, that he was aware of the breakdown in the relationship in early 2007.
31. In March 2008, Ms Mynhardt had told Centrelink that she was Mr Edmunds' de facto partner, and, accurately, did not say they were living together, because at that stage they were each living in their separate accommodation at the nurses’ hostel. I accept that they did not live together after early 2007, although they shared accommodation at Mr Edmunds’ son’s home in December 2007. They did not share accommodation again until Ms Mynhardt took the lease on the townhouse.
32. In April 2008, Mr Edmunds was recorded as having told Centrelink that they “never lived together” but that “reconciliation” had occurred on 14 December 2007. Those two statements describe an improbable situation. It was accurate that they had not lived together since early 2007. Centrelink contended that Mr Edmunds first claimed that he was not a member of a couple only after his payment was suspended. Having regard to Ms Mynhardt’s evidence as to her having left the relationship in early 2007, I do not accept Centrelink’s contention. Further, that they had “reconciled” does not necessarily import that they had resumed their relationship. I note that, from Ms Mynhardt’s evidence, they had not parted on good terms.
33. While they are both members of the same club, they attend infrequently. Mr Edmunds wrote in May 2008 that they share all social activities but on their evidence before me this does not appear to be the case, given their separate interests and physical abilities.
SEXUAL RELATIONSHIP BETWEEN THE PEOPLE
34. There has been no sexual relationship for some years.
NATURE OF THE PEOPLE’S COMMITMENT TO EACH OTHER
35. There was no dispute that Mr Edmunds and Ms Mynhardt commenced a de facto relationship and had a sexual relationship prior to arrival in Australia in 2002 but separated in about April 2007.
36. In completing Centrelink forms in May 2008 each said they expected the other would provide care and support in the event of illness, personal crisis, money matters and family disputes. Mr Edmunds has two sons in Australia and a daughter in South Africa. He does not appear to be close to them. All of Ms Mynhardt’s family is overseas and she intends to retire there, whereas Mr Edmunds has no intention to leave Australia. They have few friends in Australia. In the circumstances, their responses are consistent with people who have a limited network of support.
CONCLUSION
37. Determining whether a relationship is “marriage-like” is a difficult task. The assessment is made somewhat easier by the commonsense criteria identified in the legislation, as addressed above. As observed in Cullinane (where there was found to be a marriage-like relationship) being a member of a couple involves a lot more than sharing a common address. It should be noted that absence of a sexual relationship, per se, does not in itself mean the lack of a marriage-like relationship: Re Ford v Secretary, Department of Family and Community Services (2003) 72 ALD 718. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
38. I was impressed with the open manner in which Mr Edmunds and Ms Mynhardt gave their account of their relationship. I note too that various Centrelink officers who have dealt with Mr Edmunds have expressed a similar view. I accept that Mr Edmunds values Ms Mynhardt’s companionship and that he is presently financially reliant upon her. He would leave if he could but he is not in a financial position to go anywhere. He is humiliated by having to accept her charity. Ms Mynhardt feels indebted to him emotionally but is being financially drained. Neither see their future together – Ms Mynhardt would prefer that Mr Edmunds go off in his campervan, and she has plans to retire, alone, to South Africa.
39. Upon reviewing the totality of the evidence, I have come to the view that Mr Edmunds and Ms Mynhardt were not in a “marriage like relationship” at the relevant date.
DECISION
40. The decision under review is set aside.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ....................[sgd].....................................................
Myra Nikolich, AssociateDate of Hearing: 10 June 2009
Date of Decision: 2 July 2009
Applicant representative: Self
Respondent representative: Ms Hanne Schuster
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