Faulkner and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1041

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1041

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2006/258

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		GILL KAYE FAULKNER

Applicant

And SECRETARY,
DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr R. McRae, Member

Date2 February 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) R. McRae

Member

SOCIAL SECURITY ‑ parenting payment (single) ‑ whether applicant is a member of a couple ‑ marriage-like relationship

Social Security Act 1991 s 4(2)(a), (3)

Re Weaver and Another and Secretary, Department of Families and Community Services (2005) 87 ALD 235

REASONS FOR DECISION

2  February 2007 Dr R. McRae          

1.      Ms Gill Kaye Faulkner (the Applicant) seeks a review of a Social Security Appeals Tribunal (SSAT) decision dated 28 February 2006.  The SSAT affirmed a 28 July 2005 decision of a Centrelink officer rejecting the Applicant’s claim for Parenting Payment (Single) (PPS) on the basis that she is a member of a couple.  Centrelink acts as the service delivery agent for the Secretary to the Department of Employment and Workplace Relations (the Respondent).

2.      The issue for the Tribunal is whether the self-represented Applicant was a member of a couple according to the provisions of the Social Security Act 1991 (the Act) as at the date of her application, 8 December 2004.  The Tribunal’s decision is that the Applicant was a member of a couple on that date, and thus not entitled to the PPS from that date.  

BACKGROUND

3.      The Applicant is a forty-seven year old woman who trained as a chef, a gemmologist and scientific photographer.  She has been married since 16 December 1988, to Mr James Taylor.  Mr Taylor trained as an accountant in London after having worked as a plumber.  He is now a building administrator.  She has three children with her husband, Luke (born 31 July 1992), Scott (born 10 November 1995) and Dale (born 19 December 1997) (T11).  They all lived (and continue to live) together at the same address.

4.      The Applicant received a parenting payment from 8 May 1997 to 30 June 2000, when it was cancelled due to the level of her income.  In 2004 the Applicant contacted Centrelink on a number of occasions to enquire about claiming PPS.  On 8 December 2004 the Applicant lodged a claim for PPS on the basis that she was living separated under one roof with Mr Taylor, and had been since 1997/1998. 

5.      She has recently (2006) filed for a divorce.  She currently considers that she has no partner. 

APPLICANT’S SUBMISSION

6.      The Applicant submitted that she had been separated from Mr Taylor since about 1997 – 1998.  She submitted her personal perception of the relationship as being verbally abusive and unhappy.  She tendered into evidence a letter dated 29 August 2006 referring to a future listing for the hearing of an application for divorce.  She relied on previously submitted documents and letters from family and friends, her general practitioner and the Principal of Kew Primary School, attesting to what she had reported to them of her unhappy marriage and difficult financial circumstances.  She submitted that she referred to herself as being married for social comfort only. 

7.      The Respondent contends the Applicant is a member of a couple according to the provisions of the Act.

CONSIDERATIONS

8. Sections 4(2)(a) and 4(3) of the Act set out the tests for legally married persons not living separately or apart on a permanent or indefinite basis. Section 4(2)(a) of the Act states that 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…

Section 4(3) of the Act provides that:

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, engage in, joint social activities;

(d)       any sexual relationship between the people;

(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;

(iv)whether the people see their relationship as a marriage-like relationship.

FINDINGS

9.      The Applicant has been unable to identify a specific date, following which all of her associates would be able to state she was separated.  Her statements have ranged from: 1997 ‑ 1998; to Centrelink on 17 March 2004 for several years; to Centrelink on 24 May 2004, she was still considering whether to separate; to Centrelink on 16 July 2004, she would not proceed with a claim for PPS; to Centrelink on 16 July 2004 that she had separated, Mr Taylor had moved out and she remained at the marital house; to Centrelink on 7 December 2004 (T11) approx 6 years ago; and finally in evidence to the Tribunal, that her marriage stopped after her third son was born. 

10.     The Tribunal finds that at the time of the claim, the Applicant was legally married, with no steps having been then undertaken to formally separate or dissolve the marriage or separate joint financial arrangements.

11.     At the time of the claim the Taylor family were living together in the family home, which was purchased in 1997.  The house remains jointly owned.  Mr Taylor paid (and continues to pay) the mortgage.  Neither member of the couple intended to move to separate accommodation.

12.     At the time of the claim the Applicant and Mr Taylor used separate bedrooms and continue to do so; but they used and continue to use other areas of the house in common.  There have been no structural alterations to the house. 

13.     The Applicant is receiving family tax benefit in respect of her three children.  She includes her husband’s income as part of the combined income to determine her payment entitlement. 

14.     There was (and remains) a joint mortgage bank account which receives Mr Taylor’s wages when he earns wages, and from which Ms Faulkner withdraws funds, in the order of $200 ‑ $250 per week, using a debit card for payment of domestic utility accounts and for shopping.  The Applicant has no bank account of her own. 

15.     Mr Taylor pays for a substantial proportion (in the order of $1800 approximately per month) of household expenses (T11).  The Applicant pays for at least a substantial proportion of the children’s schooling and other activities. 

16.     The Applicant undertakes the household shopping, cleaning of all house areas including Mr Taylor’s bedroom occasionally, other housework except cooking and washing for Mr Taylor, and tends the garden. 

17.     The Applicant has the primary caring role for the children, including delivery to and collection from school. 

18.     The Applicant and Mr Taylor have a limited interpersonal relationship and no joint friends.  They have undertaken several family holidays together at Christmas time to Phillip Island between 1997 and 2004, with Mr Taylor undertaking the driving to the destination. 

19.     The Applicant has put herself out to others as being married between 1997 and 2004, including using her married name of Taylor. 

20.     The Applicant and Mr Taylor do not provide companionship or support to each other, and would not do so in the event of a personal crisis. They do not have a sexual relationship.  They are not beneficiaries under each other’s will, life assurance or superannuation policies (T11). 

CONCLUSION

21.     There is significant financial interdependency between the Applicant and Mr Taylor, including support for the children.  The Applicant’s relationship with Mr Taylor has the hallmarks of and conforms to a marriage-like relationship, including traditional gender roles, irrespective of the quality of that relationship. 

22.     The Applicant has not fulfilled the onus of providing independent objective evidence that she was separated prior to her claim, with no reasonable possibility of resumption of the relationship. 

23.     The Tribunal therefore concludes that the Applicant was (and remains) a member of a couple in a marriage-like relationship living under the same roof according to the relevant provisions of the Act. 

24.      The Tribunal concludes that the Applicant is not entitled to the PPS at the time of her claim on 8 December 2004. 

DECISION

25.      Accordingly, Centrelink’s decision to reject the PPS claim was the correct and preferable decision and the Tribunal affirms that decision.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of:

Dr R. McRae, Member

signed:     Olympia Sarrinikolaou

Clerk

Date of Hearing:  23 October 2006

Date of Decision:  2 February 2007

Advocate for the Applicant:               Self‑represented

Advocate for the Respondent:           Mr T. Mosby, Clayton Utz