Frearson and Secretary, Department of Social Services (Social services second review)

[2021] AATA 2112

Frearson and Secretary, Department of Social Services (Social services second review) [2021] AATA 2112 (5 July 2021)

Division:General Division

File Number(s):               2020/3734

Re:Robert FREARSON

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson AM

Date:05 July 2021

Place:Brisbane

The decision under review is affirmed.

.......................[SGD].................................................
Senior Member P J Clauson AM

Catchwords

SOCIAL SECURITY – rate of age pension – whether a member of a couple – whether living separately and apart on a permanent and indefinite basis – whether separated under one roof – financial aspects of the relationship – social aspects of the relationship – sexual relationship between the people – nature of the people’s commitment to each other – evidence supports that applicant a member of a couple – decision affirmed

Legislation

Social Security Act 1991 (Cth)

Cases
Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634.
Lambe and Director- General of Social Services (1981) 57 FLR 262
Lynam and The Director-General of Social Security (1983) 1 AAR 197
Pelka and Secretary, Department of Family and Community Services [2006] FCA 735
RFZX and The Secretary, Department of Education, Employment Workplace Relations & Anor. [2010] AATA 35
Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050

Staunton-Smith and Secretary, Department of Social Security (1991) 32 FCR 164

VBH and Secretary, Department of Family and Community Services [2006] AATA 1

Secondary Materials

Social Security Guide (Cth) (Version 1.283 - Released 1 July 2021)

REASONS FOR DECISION

Senior Member P J Clauson AM

05 July 2021

BACKGROUND    

1.Mr Robert Frearson (the Applicant) has been married to his wife Ms Sommai Frearson since the 8 November 2011.[1] They reside at their current address together in Alstonville, New South Wales. They are living under the one roof and continue to be married.[2]

[1] Exhibit 1, T Documents, T11, Excerpt of Centrelink Records for Marital Status, page 137.

[2] Exhibit 1, T Documents, T5, SS293 form, page 50.

2.The Applicant on the 20 June 2019 provided Services Australia (the Agency) with a Relationship Details – Separated Under One Roof  form (‘SS293’) to support his claim to he be recorded as separated under the one roof with Ms Frearson.[3] Likewise, on the 7 August 2019, Ms Frearson supplied the Agency with a SS293 on her behalf.[4]

[3] Ibid 49 – 60.

[4] Respondent’s Statement of Facts, Issues and Contentions dated 9 December 2020, ‘Attachment A’, pages 1 – 11.

3.The Agency, following receipt of the Applicant’s and his wife’s SS293 Forms conducted an assessment of the living arrangements and circumstances and determined that the Applicant remained a couple with Ms Frearson.[5]

[5] Exhibit 1, T Documents, T7, Initial Decision of Services Australia, pages 77 – 78.

4.The Applicant sought review of this decision on the 27 November 2019 by an Authorised Review Officer (ARO) from the Agency.[6]

[6] Exhibit 1, T Documents, T8, Confirmation of Reconsideration Request, page 79.

5.The Decision of the Agency under review was confirmed by the ARO on the 6 December 2019[7] following which the Applicant then sought a further review by the AAT1[8]  accompanied by his statement and supporting materials.[9]

[7] Exhibit 1, T Documents, T9, Reconsideration Decision by ARO, page 80.

[8] Exhibit 1, T Documents, T2, Decision of AAT1, pages 3 – 10.

[9] Exhibit 1 T Documents, T1, Application for review, pages 1 – 2; T10, Evidence before the AAT pages 85 – 135.

6.The AAT1 affirmed the decision under review on the 23 April 2019.[10]

[10] Exhibit 1, T Documents, T2, Decision of AAT1, pages 3 – 10.

7.The Applicant sought a further review of the decision by this Tribunal on the 12 July 2019.[11]

[11] Exhibit 1, T Documents, T1, Application for Review, pages 1 – 2.

Issues

8.The issue before the Tribunal in this review is whether the Applicant and Ms Sommai Frearson were members of a couple from 20 June 2019, and if so, whether the Applicant should be paid Age Pension at the partnered rate.

Legislative Framework

9.The relevant legislation is contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security Guide[12] (the Guide), with particular reference at 2.2.5.30.

[12] Social Security Guide Cth (Version 1.283 - Released 1 July 2021)

10.Although the policy is not binding, the Tribunal has found that it will normally be applied in circumstances where no compelling reason not to do so exists as expressed in: Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634.

11.The Act at subsection 4(2)(a) prescribes when a when a person can be considered a member of a couple and includes the circumstance when the person is legally married to another person and is not living separately and apart from that person on a permanent or indefinite basis.

12.In order to determine whether or not a person is living separately and apart from their partner on the permanent or indefinite basis envisaged in the legislation, it is necessary to have regard to all circumstances of the relationship including, in particular, the matters set forth in subsection 4(3) of the Act, namely:

Member of a couple—criteria for forming opinion about relationship

(3)  In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, or in a de facto relationship with, 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 or a de facto relationship.

(3A)  The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

13.The above indicators are not an exhaustive list, nor may all be required to be considered in every case. They do, however, provide a collection of indicators to be considered when a decision maker is considering the question as to whether the partners are  living separately and apart under the same roof. Of course, it is necessary for the decision maker when confronted with the need to decide this question, to make that determination after a consideration of all the material facts and evidence presented to them.

14.The jurisprudence around this point is of assistance when the Tribunal has to apply section 4(3) in the proper manner and the Federal Court decision in the matter of Staunton-Smith and Secretary, Department of Social Security (1991) 32 FCR 164 is sound authority for this view expressed above of the legislative effect of subsection 4(3) of the Act.

15.The Respondent alluded to the case of VBH and Secretary, Department of Family and Community Services [2006] AATA 1 where at page 94 the Tribunal observed:[13]

The section 4(3) criteria does have some subjective components but it is overwhelming objective in the nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively. 

[13] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 9 December 2020, page 6, paragraph 49.

16.The Respondent alluded also to the matter of Staunton-Smith and Secretary of Social           Security (1991) 32 FCR at 164 (above) where O’Loughlin J observed:[14]

It is not suggested that this list is exhaustive nor will each of these subjects be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the factfinding Tribunal is to have regard to all the material facts of each case treating the matters above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

[14] Ibid 5 – 6, paragraph 44, 46.

17.Further, the Respondent drew the attention of the Tribunal to the matter of Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 where at paragraph [70] the Tribunal stated:[15]

… being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be a member of a couple. All of the circumstances need to be considered. Each matter is different.

[15] Ibid, 6, 51.

18.The credibility of the claimant party is also a vital consideration frequently when determining whether a party is a member of a couple. Authority for this proposition is contained in the matter of RFZX and The Secretary, Department of Education, Employment Workplace Relations & Anor. [2010] AATA 35.

19.In addition to these decisions, the Tribunal also finds the observations of Fitzgerald J. in the matter of Lynam and The Director-General of Social Security (1983) 1 AAR 197 (‘Lynam’) of guidance. In that matter, His Honour was making observations on the factual construction of the domestic arrangements whereby Mr L shared a residence with Mrs C and which had been jointly purchased with another party. The expenses of the household were shared equally. Mr L had his unemployment benefit cancelled. This in turn led to hardship as he wasn’t able to leave Mrs C to buy him out of the house and they remained friendly but denied a sexual or social relationship. The Department formed a view that they were a de facto partnership because of Mr L’s total financial dependence on Mrs C and the fact that their residence was jointly owned

20.His Honour was considering these circumstances based on comments of the Full Court of the Federal Court of Australia in Lambe’s[16] case wherein that Court expressly rejected the proposition that the absence of adequate financial support was of determinative significance in deciding whether an Applicant for a Supporting Mother’s Benefit under Part IV AAA of the Act was a ‘supporting mother’. The Full Court decided that in determining whether a woman was ‘living with a man as his wife on a bona fide domestic basis’, all facets of the interpersonal relationship should be taken into account. Financial support would be an important, although not necessarily crucial, consideration. It would be only one of a number of relevant matters which the AAT should take into account

[16] Lambe and Director- General of Social Services (1981) 57 FLR 262 (‘Lambe’).

21.In Lynam, Fitzgerald J felt that the approach in Lambe was correct in this regard and did not warrant change. He went on to say:

In Lambe’s case, the Full Court said that all facets of their interpersonal relationship need to be taken into account and that their financial relationship, although important, is only one of a number of relevant matters. I am unable to perceive how any difference of approach is warranted in the context in which it arises in this case ….

22.The Tribunal has also considered the decision of French J (as he then was) in the matter of Pelka and Secretary, Department of Family and Community Services [2006] FCA 735 (‘Pelka’). His Honour made some helpful observations and provided guidance regarding the matters to be considered by a decision-maker when attempting to determine the nature of the relationship between two parties in circumstances where the correct approach required them to resolve questions posed by section 4(3) of the Act.

23.For context, a short overview of the facts in Pelka is appropriate. Ms P had been in receipt of care payments from July 2000 until March 2003 at the single rate, at which time the Department of Family and Community Services determined that during this period, she had been in a marriage-like relationship with Mr K, a person with whom she shared her apartment. Ms P had been separated from her husband since 1986 and they divorced in 2003. It is to be noted that Ms P was of Chinese ethnicity and when she and Mr K shared her apartment they became, by way of custom, godbrother and god-sister. Ms P met Mr K in 1985 and purchased her apartment in 1988. It was a two-bedroom apartment and when she went for an overseas trip for an extended holiday, Mr K house-sat the apartment for her. He then stayed on after her return as he had nowhere to go and resided in the spare room until 2004.

24.They agreed an arrangement whereby Mr K would pay no rent however, in lieu of that concession, he would pay for Ms P’s airfares and accommodation when she travelled overseas. During this time, Ms P paid off her mortgage and Mr K paid the electricity, gas and telephone bill.

25.Ms P stated that she had no sexual relationship with Mr K, that they travelled overseas about once a year and to save money booked on a twin share basis hotel apartment to save money. Ms P paid for her own shopping excursions.

26.The parties did not keep joint bank accounts and would go to the movies together on occasion. If Ms P cooked food in excess of her needs, she would share that with Mr K. She told none of her friends that she was in a relationship with Mr K and they generally lived separate existences and not see each other often for days. She took no interest in Mr K’s private life, nor he in hers. And, it was a matter of convenience that they were able to live in the same accommodation.

27.Ms P stated that she didn’t pool resources with Mr K other than when they took joint holidays and she was unaware of his testamentary arrangements in her favour. Mr K said that the relationship was ‘separate and apart’ and that he had not had sex with Ms P, had lady friends with whom he would stay and didn’t advise Ms P of his movements. He also stated that he did his own cleaning.

28.Since 2000, Ms P had been a carer for a Mr W and had accompanied him on a number of business trips, one of which was a three-month trip around Australia.

29.In 2004, Ms P moved into Mr W’s Warwick residence to care for him and received carer payments. In between the years 2000 and 2003, she had received carer payments for her care of Mr W at the single person rate. In 2003, the Department reviewed her situation and then decided that she had, in fact, been living in a marriage-like relationship with Mr K since at least 2000 and that, on that basis, had been overpaid carer’s payment in the amount of $29,411.14 during the period 11 July 2000 to 24 March 2003.

30.This decision led to the review process and then finally to the Federal Court.

31.The main significant consideration in the matter was what is set out in section 4(3)(2)(a)(ii), the pooling of financial resources.

32.French J set out general guidance on the correct approach to resolving the questions posed by section 4(3) of the Act:[17]

… It plainly involves something more than financial cooperation or separate contributions to different elements of household expense. The so-called ‘barter system’ did not constitute a pooling of financial resources in that sense. If Mr Kuhl paid for or contributed to overseas travel for Ms Pelka instead of paying rent, that is not a ”pooling of financial resources” any more than his payment of rent would be so described.

[17] Pelka and Secretary, Department of Family and Community Services [2006] FCA 735, [46].

HEARING

33.The Hearing was convened by telephone on the 11 February 2021. Both parties were present and the Applicant appeared on his own behalf and the Respondent was represented by Mr Harvey. The Applicant was cross-examined by Mr Harvey and the Applicant in addition to his affirmed evidence provided a concluding summary as did Mr Harvey for the Respondent. 

CONSIDERATION

34.The Tribunal is required to have regard to the interpersonal relationship between Applicant and their alleged partner as a whole and is not constrained to consideration of those factors embodied in section 4(3) of the Act.

35.The Tribunal must, of course, to apply the law correctly, have regard to each of the factors contained in section 4(3).

36.It is necessary for the Tribunal to engage in an exercise to carefully weigh those factors which point towards a relationship which may indicate a partnered arrangement between the parties and those which do not. To come to a conclusion, it is necessary for the Tribunal to consider the complete picture as painted by the evidence and in so doing make appropriate evaluations of objective and subjective considerations.

37.In addition to these factors, the Tribunal could consider any other relevant factors to assisting it in reaching a conclusion after assessing and weighing the evidence presented before it:

4(3) of the Act requires the Tribunal to consider five broad areas:

(a) 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 parties; and

(e) the nature of the people’s commitment to each other.

The Financial Aspects of the Relationship

Joint Ownership, Rental and Joint Liabilities, Significant Pooling of Financial Resources

38.The Applicant and his wife Ms Frearson share a house at the Alstonville address and pay the rent of $340.00 per week equally between them.[18] The rental monies are paid to the landlord’s  agent’s account, Elders Real Estate account number XXXXX 766 .[19]

[18] Exhibit 1, T Documents, T5, SS293 Form, page 52.

[19] Ibid.

39.The Applicant and his wife have a Suncorp joint account number XXXXX X244 (‘the Joint Account’) and statements for that account are before the Tribunal covering the period between 11 March 2019 and 20 March 2020.[20]

[20] Exhibit 1, T Documents, T10, Suncorp Bank Statement for Joint Account, pages 88 – 104.

40.Both the Applicant and Ms Frearson have Suncorp bank accounts in their own names in addition to the Joint Account. These are in the case of Mr Frearson, Account number XXXXX X051 (‘the Applicant’s Account’) and in the case of Ms Frearson, Account number XXXXX X074 (‘Ms Frearson’s Account’). Statements for both of these accounts are in evidence before the Tribunal. In the case of the Applicant’s Account for the period between 1 July 2019 and 9 April 2020[21] and in that of Ms Frearson’s Account the period between 12 May 2019 and 20 March 2020.[22]

[21] Ibid, 105 – 116.

[22] Ibid, 117 – 135.

41.It is noted that the Applicant’s Account and the Joint Account were used to pay for the rent of the residential property at Alstonville from 22 March 2019 until 15 November 2019. Ms Frearson’s Account was used to pay the rent from 22 November 2019 until 31 January 2020 for seven out of ten rental instalments. The pattern of rent from 31 January 2020 changed so that the rental instalments were paid in an alternating manner from both of the individual accounts.[23]

[23] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 9 December 2020, Attachment B, pages 12 – 13.

42.The Tribunal notes that the AAT1 was told by the Applicant that he paid half the rent on the residence from his own account and that Ms Frearson paid her half from the Joint Account into which her wages were paid, but then, he later said that the joint account was not used and that her wages were paid into her own account from which she paid her share of the rental of $170.00. This contrasts to a degree with what the parties put into their respective SS293 forms. Ms Frearson said in her SS293 that she paid $170.00 per week of a total rental payment of $340.00 however, the Applicant stated “No” on his form in answer to the question “Does anyone else, including the other person, pay for accommodation at your current Address?”.

43.The Tribunal also notes that there were regular transfers of $200.00 being made from the Joint Account to the Applicant’s personal account from 3 April 2019 up until 13 November 2019 after which those transfers ceased to be made. It is also noted that these payments represented a sum totalling $3400.00.[24]

[24] Ibid, Attachment E, pages 18 – 19.

44.The bank statements for the Applicant’s personal account indicate that for the period between 1 July 2019 until 31 December 2019 and the period from 1 January 2020 until 9 April 2020 reveal the $200.00 transfers discussed above and for the period of January 2020 the account statements reveal no transactions. Additionally, these statements reveal the rental withdrawals being debited each fortnight until 8 November 2019 and then ceasing and being re-started on 27 December 2019.

45.Further, in relation to the financial affairs of the couple, Ms Frearson had been in receipt of Carer Payment and Carer allowance between 7 October 2015 and 29 October 2019. Ms Frearson requested at the latter date that she stop receiving Carer Payment but remains in receipt of Carer Allowance. The Tribunal notes that both payments were received into the Joint Account an arrangement which existed up until 4 February 2020.[25] Ms Frearson now has her Carer Allowance paid into her personal account.[26] It is also noted that between the 19 March 2019 and 18 June 2020, the amount of $16,243.39 was deposited into the joint account a sum which included Ms Frearson’s Carer Allowance and Carer Payment totalling $15,283.41.[27]

[25] Ibid, Attachment D, pages 16 – 17.

[26] Exhibit 1, T Documents, T10, Suncorp Bank Statements, pages 121 – 135.

[27] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 9 December 2020, Attachment D, pages 16 – 17.

Any Legal Obligations Owed by One Person in Respect of the Other Person

46.The evidence of the Applicant was that the parties had bought various items between them for their usage both individually and collectively. He told the Tribunal that a mattress had been purchased in both names and that as at the date in 2019 when he signed the SS293 Form he stated that the loan had a balance of $855.00 and that the repayments were met equally by both he and his wife.[28] His evidence continued that the mattress was bought for him for his bedroom and that similarly, some 7-8 years earlier, they had bought and paid off a bed for Ms Frearson as well.

[28] Transcript of Proceedings, Frearson and Secretary, Department of Social Services (Administrative Appeals Tribunal, Senior Member P J Clauson AM, 11 February 2021), page 7, lines 1 - 4.

47.The Applicant also told the Tribunal that the couple had a motor vehicle which both of them used. The Applicant told this Tribunal that the car was in his name when asked if it was jointly owned. He told the Tribunal that he still held a driver’s licence but that he didn’t drive anymore but that: “I went for my licence a couple of months ago and I’m only good for driving to the specialist in Lismore and just outside Ballina.”.[29] The Tribunal notes also the evidence recorded by the AAT1 that in that hearing from Ms Frearson’s SS293 Form that she and the Applicant had claimed to be members of a couple in order to secure a loan to purchase the car, and that He owned a car which she shares with him in order “to drive him around.”[30].

[29] Ibid, lines 28 – 30.

[30] Exhibit 1, T Documents, T2, Decision of AAT1, page 6, paragraph 21.

48.The evidence recorded in the decision of the AAT1 is that the Applicant told that review that “…they own the car 50/50 although he noted that Ms Frearson uses it 90% of the time.”[31] The Applicant also told theTribunal at the hearing that Ms Frearson pays the running costs and that they both were responsible for “the costs.”[32] presumably meaning the registration and insurance costs. The Applicant told this Tribunal that Ms Frearson “puts all the petrol in it and she gets it serviced”.[33] The Applicant also told the Tribunal that Ms Frearson uses the car as her principal means of transport to and from work.

[31] Ibid.

[32] Transcript of Proceedings, Frearson and Secretary, Department of Social Services (Administrative Appeals Tribunal, Senior Member P J Clauson AM, 11 February 2021), page 7, lines 41 – 42.

[33] Ibid.

49.The Applicant also told this Tribunal that Ms Frearson now paid all the costs associated with the car even the insurance although, in her SS293 she stated that they both paid the costs of the car. The Applicant told this Tribunal that arrangement came into effect “…months ago.”[34] He stated that the insurance was being paid from: “…Possibly last time it was due for the – due for insurance.”[35]. He also told the Tribunal that this had occurred in “…  Possibly the last seven months.” [36]  

[34] Ibid, page 8, line 16. 

[35] Ibid, lines 41 – 42.

[36] Ibid 9, line 1.

The Nature of the Household and Sharing of Day-to-Day Household Expenses

50.The house where the parties live is described in the AAT1 decision as consisting of a kitchen, dining room, lounge, bathroom and two bedrooms. The Applicant has told this Tribunal that they have a bedroom each and share the other rooms on a day to day basis.

51.The Applicant told the Tribunal that, in relation to the payment of the utilities Ms Frearson pays for the electricity because, he claims that he uses very little of the electricity and retires early to bed at about 6.30pm and watches television. Also, he told the Tribunal that she pays the electricity because she is earning good money and he is not earning as much as she does and they have agreed to that arrangement. He also stated on his SS293 Form that Ms Frearson pays for her own internet.

52.The Applicant told the Tribunal that he buys most of his own groceries (about 90% as stated in his SS293 form) and that his wife grows her own vegetables in the garden. He stated on his SS293 Form at Question 33 regarding the cooking of meals, that “my wife cooks me mainly soup – as I have terminal cancer and have lost my appetite.”.[37] He also told the Tribunal that he buys ice cream and a powdered food called Sustagen  which he makes into a meal with a banana in the blender with milk. His evidence was that Ms Frearson loves gardening and:

[37] Exhibit 1, T Documents, T5, SS293 Form, page 53.

“So she grows most of the stuff and then, as I think I told you, that the only thing I get from her is a bowl of soup now and then because she has soup and she just makes a little bit extra for me because I can only have liquid.”[38]

[38] Transcript of Proceedings, Frearson and Secretary, Department of Social Services (Administrative Appeals Tribunal, Senior Member P J Clauson AM, 11 February 2021), page 10, lines 3 - 7.

53.The Applicant indicated on the SS293 Form that Ms Frearson was a nominated beneficiary under his will. He told the Tribunal in his evidence that He had a term deposit of $50,000.00 which represented a payout from the Royal Australian Navy for contracting  asbestosis from a ship that he was serving on. That money, he told the Tribunal was for his children to be divided equally upon death and there was also a bequest of $5000.00 to Ms Frearson. It would also appear from the Applicant’s evidence that all the household equipment he considers to be joint property, for when he was asked about the household goods he replied that “she could have the lot.”[39]

[39] Ibid, 13, line 9.

54.The Applicant’s evidence regarding other aspects of the household arrangements was that they both contributed to these. He stated that he would take washing off the line and place her washing on her bed. She would sweep out the house with a Thai broom as their vacuum cleaner had broken down.

55.He told the Tribunal that they had two refrigerators the older one in which he keeps his milk and Sustagen and a new one bought by Ms Frearson some six months prior to the hearing for her food.  

The Social Aspects of the Relationship and Joint Social Activities

56.The Applicant told the Tribunal that he has told friends that he and his wife are not a couple should they ask him. In his SS293 Form he stated “Yes” in response to the Question 43 relating as to whether friends, relatives or regular associates consider him to be partnered The Applicant added to his answer there “until we tell them”.[40] It is noted by the Tribunal that the Applicant’s evidence was that his wife has her Thai friends around for social occasions but that he doesn’t participate in these gatherings as they usually take place in the garden and he remains indoors. He says that he cannot understand their language. He did, however, participate in an annual Christmas event with his children and Ms Frearson when they had his family around for a Thai lunch. This has become something of a tradition over the years. This Tribunal notes the answer by Ms Frearson to Question 45 in Ms Frearson’s SS293 Form regarding social and leisure activities where she marked the answer as “Yes” and added “shopping, Dr’s, Coffee.”

[40] Exhibit 1, T Documents, T5, SS293 From, page 54.

57.The Applicant confirmed that he sometimes accompanies her on shopping trips to Ballina as a break from being at home.

Sexual Relationships between the Applicants

58.The Tribunal notes the evidence of the Applicant that he and Ms Frearson have not enjoyed conjugal relationships for some twelve years.[41]

[41] Ibid, 51.

The Nature of the Applicants’ Commitment to Each Other

Length of Relationship

59.The parties have been married since the 8 November 2011. The marriage is of ten years standing. The Applicant’s SS239 Form notes in answer to Question 78 (albeit wrongly completed in that section by the Applicant) that: “I always help Sommai as her reading & writing is not good – have done for 14 years.” This is a clear indication that the relationship has in some form, been longer than the length of the marriage. Both parties have claimed that they separated on the 1 September 2018 (Exhibit 1, T5, p.50) but have, however, remained together under the same roof since that time.

Do the Parties see the Relationship Continuing Indefinitely?

60.The Applicant told the Tribunal in evidence that he and Ms Frearson were still living together and that he couldn’t afford to go anywhere else. He also stated that he had discussed the matter of separation and divorce with Ms Frearson and claims that she had told him “I don’t care, up to you.”[42]. He stated that it costs money and that he was concerned that if he took that step Ms Frearson: …“She could do the dirty on me and say, ‘I want the whole’ – ‘You’re leaving me, I’ – you know, I was just told to be careful when you pack up and go.”[43] He told the Tribunal he had no active plans to cease living together but he had been trying to get to Brisbane and that he could live with one of his sons but didn’t want to do that because his son lived with his male partner and he couldn’t handle that.

[42] Transcript of Proceedings, Frearson and Secretary, Department of Social Services (Administrative Appeals Tribunal, Senior Member P J Clauson AM, 11 February 2021), page 14, line 34.

[43] Ibid lines 38 – 40.

61.Both the Applicant and Ms Frearson indicated on their respective SS293 Forms that they intended to keep living under the one roof on an indefinite basis. The Applicant at Question 11 on the Form marked the Box “Not sure” and added a comment “Not known” regarding if he thought the parties would get back together. Ms Frearson answered on her Form that she intended to live at the same address with the Applicant on a “permanent” basis (Question 9) and that “I am caring and can’t afford to move out.” at Question 10, and at Question 11 answered “no” to the question did she think there was any possibility of getting back together with the Applicant. Ms Frearson at Question 13 gave the answer that she didn’t want to legally terminate the relationship and provided no further expansion on that point.

The Nature of Companionship and Emotional Support Provided by the Parties to Each Other

62.The Applicant has provided Ms Frearson with support to help her function in Australian society as attested to in his evidence to this Tribunal and in his SS293 Form at Question 78 where it is stated “I always help Sommai as her reading and writing is not good – have done for 14 years.” He also confirmed that Sommai is his carer at Question 41 of the SS239 Form in the following terms: “At present Sommai is my carer- does not want to be now” however, it is noted that, although no longer in receipt of Carer Payment, it appears from the bank statements that she continued up to the latest statement available to the Tribunal, to receive Carer Allowance up to the 3 March 2020.

63.Ms Frearson throughout her SS239 Form has indicated on a number of occasions that she cares for the Applicant as evidenced by her answers to Questions 10, 33 and 41.

64.The Applicant on the other hand is shown to care for Ms Frearson by helping her with reading, writing and dealing with forms. He does note in Question 33 on his SS239 Form that his wife does in fact cook for him mainly soup and in fact in answer to Question 34 on the Form states that he does not cook.

65.The Applicant told the Tribunal that he had arranged for his son to assist his wife to make a Worker’s Compensation claim at some point as it appeared that he was not able to assist her in that regard.

66.The Applicant gave evidence to the Tribunal that he had felt that Ms Frearson should have more security in life as he was suffering from cancer and she was receiving Carer Payments and the Allowance only. He felt that she needed a job to facilitate her ongoing security. He told the Tribunal that his wife didn’t wish to remain as a carer and that he considered this to be a reasonable position on her part. He said that he had heard about a job and told her about it, and she interviewed for the position and secured it. He stated that it is with a nursery and that she was very good at her job and was now a permanent employee.   

WEIGHING OF THE EVIDENCE

67.The Tribunal must consider all the circumstances of the relationship enunciated above in order to fulfil the requirements of subsection 4(3) of the Act in order to form an opinion as to whether a person is living separately and apart from another person on a permanent or indefinite basis.

68.The Tribunal in considering the financial arrangements of the parties finds that they both have private individual bank accounts and are still the holders of a joint bank account albeit that it is now little used.

69.The joint account was the receiving account for both Ms Frearson’s Carer’s Payment and Carer’s Allowance and these were the principal deposits into that account. This account was used to pay the rent for their dwelling as was the Applicant’s own up until the 15 November 2019. Ms Frearson’s was used to pay seven of the ten rental payments between 22 November 2019 and the 31 January 2020 and, from the 31 January 2020 there was an alternating pattern of rental payments from each of the parties’ personal accounts. The Tribunal notes that there were regular fortnightly transfers in the sum of $200.00 from the joint account to the Applicant’s personal account, the purpose of which is not apparent to the Tribunal nor it seems was it so to the AAT1 review.

70.Over time the Applicant and his wife have purchased items of household significance together such as a bed, a mattress and a motor vehicle for their use. The evidence before the Tribunal is that these purchases were made by raising joint loans and that, in order to facilitate the granting of the loans the Applicant and Ms Frearson would rely upon their married status to engender confidence and a degree of comfort in and to the lender at the time in granting the finance. Likewise, the rental agreement for the property wherein they reside is also in joint names. The rent is paid jointly by the Applicant and Ms Frearson, although as noted in his SS293 Form the Applicant stated that he paid the rent on the property and that no one else paid for accommodation at the same address. The evidence indicates that is not correct.

71.Regarding the payments for Carer Allowance and Care Payments to Ms Frearson, the Tribunal noted that the Carer Payment was ceased upon request by Ms Frearson as at the 29 October 2019 but that she is still in receipt of the Carer Allowance which is paid into her personal account. The Tribunal considers that it is significant that when the Joint Account was the receiving account for both the carer’s Allowance and Carer’s Payment, the sum of $15,283.41 was the total amount received from these sources and in fact, formed the bulk of the funds received by that account between the 19 March 2019 and 18 June 2020. The Tribunal also notes that notwithstanding that the parties claim to have separated on the 1 September 2018, the Joint Account was still being utilised for joint purpose as well as the $200.00 per fortnight transfers to the Applicant’s personal account post the date of their alleged separation.

72.The Tribunal is satisfied that the Applicant and Ms Frearson whilst having their own accounts separately held together with the Joint Account (albeit relatively underutilised) have done and still do work co-operatively to finance purchases of mutual benefit to them. It is not unusual for parties to a partnered household to have independent financial arrangements by way of assets or income and nor is it unusual for them to hold bank accounts individually in their own names. In this matter it is clear that as at the 6 June 2019 when the Applicant and Ms Frearson signed their SS239 Forms they were still, for want of a better term, mixing and matching their use of the personal and joint accounts for their financial purposes which included the fortnightly $200.00 transfers from the Joint Account to the Applicant’s Personal Account at least up to the 9 April 2020.

73.The Tribunal has considered other matters relating to the joint obligations the Applicant and Ms Frearson may have. For example, in relation to the purchase of the Applicant’s mattress by way of a joint loan, the Applicant’s SS239 Form stated that there was a balance owning at that time of $855.00 which was being paid off by re-payments shared by the Applicant and Ms Frearson for the Applicant’s benefit. The evidence before the Tribunal was that in addition the parties had made similar financing arrangements for the purchase of other chattels such as a bed for Ms Frearson. The Tribunal considers that the parties are quite unhesitant in using their married status as a comfort to lenders in order to obtain loans for their significant purchases and to assume joint and several liability for the responsibility of repayment of the associated loans. The evidence before the Tribunal regarding the household chattels is that they are jointly owned by the parties. Ms Frearson confirmed this at Question 58 of her SS239 Form and the Applicant confirms this also in his SS239 Form at the same question. 

74.The Applicant and Ms Frearson also raised a joint loan for the purchase of a motor vehicle. This vehicle is their shared transport. The evidence before the Tribunal is that the car is registered in the Applicant’s name, that he had recently renewed his driver’s licence and that he was able to use the car to travel as far as his specialist in Lismore and to just near Ballina. The Tribunal notes the evidence of the Applicant to the AAT1 that the vehicle is owned by him and his wife equally but that Ms Frearson uses it 90% of the time. The Applicant told the Tribunal that because of the high usage of the vehicle by Ms Frearson she now pays for the running costs, servicing and insurance for the vehicle. The Tribunal is unaware if, in New South Wales, registration is proof of ownership of a motor vehicle however, it is satisfied that nonetheless the Applicant and Ms Frearson did raise the loan to purchase the vehicle and did so representing themselves as husband and wife to do so. Due to Ms Frearson being more active and having full time employment; she uses the vehicle to travel to and from work, to go shopping and to church and other activities requiring mobility, it would be logical that her use of the vehicle would be greater than that of the Applicant’s. The Tribunal also notes the Applicant’s evidence is that from time to time he will accompany his wife on shopping trips when they may have coffee and enjoy an outing together away from the house. The Tribunal considers that whether or not the Applicant is the sole or joint owner of the car it is clear that he does share the use with his wife. They raised a joint loan for its purchase and although he doesn’t drive it often, he is well entitled to do so should he choose. The Tribunal considers that given Ms Frearson’s usage of the vehicle and her superior income to that of the Applicant, it is not unreasonable to expect that she would bear the major expenses of running the vehicle. It is a family vehicle and is available to both for their use albeit in the case of the Applicant on a limited basis by necessity of circumstance.

75.The parties have an arrangement for the payment of the household utilities in that Ms Frearson was paying for her internet usage and she and the Applicant were sharing equally the cost of the electricity. The Applicant told the Tribunal in his evidence that that arrangement had now changed, and that Ms Frearson paid the electricity bills as well. He provided the Tribunal the rationale that she used more electricity than he and so she had agreed to pay the bill in its entirety. It is noted that however, he has a television that he apparently watches every night and Ms Frearson watches Thai films on her phone or skypes her friends and relatives. It is noted that the Applicant and his wife have a refrigerator each, so it seems unusual to the Tribunal that the suggestion from the Applicant that she uses more electricity than he does is hard to justify. A more cogent reason for Ms Frearson paying the electricity bills appears in the Applicant’s evidence at page 9 of the transcript where he states: “…Now I don’t pay anything because we’ve come to an agreement that she’s earning good money, and I am earning less money…”[44] The Tribunal is satisfied that this is the most likely reason for the change in the arrangements as outlined in the parties’ SS239 Forms. It is certainly evidence that the parties are still working in a cooperative manner in the management of their financial resources.

[44] Ibid, 9, lines 24 – 26.

76.The Applicant was questioned by Mr Harvey about the testamentary arrangements between himself and Ms Frearson and it must be said that the Applicant was less than forthcoming regarding that topic until it was elicited from him that he had $50.000.00 and a couple of paintings to be divided between his sons and that he was leaving Ms Frearson $5,000.00 out of his funds. He also confirmed that the rest of the household items were hers upon his death. This would be correct in large part as they consist of jointly owned household chattels as confirmed by his and Ms Frearson’s SS293 respective Forms. It is the view of the Tribunal that this would not be an unusual arrangement between a partnered couple where one of the partners has a family from a previous relationship and no children with the current partner in the circumstance of the first partner’s demise. This arrangement is current and is certainly not indicative of a positive step in the path to separation.

77.The parties’ dietary needs are clearly different, and the Applicant buys his own groceries to cater to his own needs and Ms Frearson being an accomplished gardener grows the household vegetables she requires. It would appear from the evidence that Ms Frearson also buys groceries and that the Applicant accompanies her on these shopping trips if he so desires. She makes soup and if the Applicant wishes to have soup, she is able to make it available for him as required. Although she makes the soup principally for herself, she is able and willing to supply the Applicant as well. Obviously, his dietary requirements are different from his wife’s as he has explained because of his health condition. The Tribunal accepts that in the circumstances this is a perfectly normal domestic arrangement.

78.The Applicant and Ms Frearson when they completed their respective SS239 Forms indicated that they both did share the household chores such as cleaning and washing equally. The Applicant told the Tribunal that the vacuum cleaner had broken, and that Ms Frearson swept the house with a Thai style broom. He told the Tribunal that up until Ms Frearson started full time work, he was able to have RSL Homecare come and do the housework but that ceased when Ms Frearson began her job. He also said in evidence that if there was washing on the line of Ms Frearson’s he would take it in and put it on her bed. He said neither party went into each of the other party’s bedroom on any regular basis, but both freely shared the rest of the house.

79.In relation to the social aspects of their relationship the Applicant claims that they don’t socialise together as she has her friends over who are Thai and married to Australian men. He doesn’t join them as he doesn’t understand when they speak in their own language. He doesn’t socialise much as he claims to have few friends. Curiously though, although he claims not to have a great deal of social contact when asked by Mr Harvey would their mutual friends know if they were no longer in a relationship, the Applicant response was “…Well, I’ve told them there’s nothing between us.”[45]

[45] Ibid, 13, line 21.

80.This is an indication to the Tribunal that there is at least some ongoing social interaction for this to occur. The Applicant also confirmed to the Tribunal that his children come down at Christmas for a Thai meal cooked by Ms Frearson with whom they get on well. He told the AAT1 hearing that he and his wife had not told the children of their separation because they did not want to upset them.[46] The Tribunal is satisfied that other people on the face of it, when first meeting the couple, would not know that they were separated unless the Applicant or Ms Frearson told them. The Applicant does in fact confirm this in his SS239 Form at Question 43. 

[46] Exhibit 1, T Documents, T2, Decision of AAT1, page 8, paragraph 34.

81.The Applicant and Ms Frearson have taken holidays separately from each other at times. Ms Frearson to Thailand between 9 October 2019 to 30 October 2019 and, the Applicant to Sydney with his son from 25 September 2019 to 2 October 2019. The Tribunal does not consider this to be an unusual occurrence for married couples. It is quite common for couples to take separate holidays from each other which does not generally indicate a separate and apart existence. It is the Tribunal’s assessment of the parties’ separate vacations to be within the reasonable behaviour for a couple.

82.The Applicant has stated on his SS239 Form that, in relation to the sexual relations between him and his wife that they had not been intimate for twelve years. The Tribunal notes that the Applicant and Ms Frearson were recorded as being married since the 8 November 2011. It would thus appear that the Applicant and Ms Frearson had ceased sexual relations prior to the date of their marriage and that, notwithstanding this circumstance they proceeded to marry. It was therefore clearly not an impediment at that time which the parties felt was affecting their overall commitment and feelings for each other. Given this unusual circumstance, the Tribunal considers that the loss of conjugal rights in the context of matters to be considered under subsection 4(3)(d) of the Act must necessarily in this matter be, after careful consideration, to a large degree, discounted in the overall assessment as to whether the parties are living separate and apart.

83.The Applicant has told the Tribunal that he has helped Ms Frearson with her with reading and writing for the last fourteen years and in fact suggested to her that she would need the security of a job given the fact of his age and state of health. He in fact helped facilitate her obtaining the position at the nursery where she now works. Also, Ms Frearson although no longer receiving her Carer Payment still receives Care Allowance for caring for her husband, cooks for him, if he feels like eating a meal and cleans the house since RSL Homecare was withdrawn. Both the Applicant and Ms Frearson have given clear indication that they have no real intention of separating and parting company permanently from each other. In fact, neither party wishes to file for divorce for reasons given ranging in the case of the Applicant from cost, the possible adverse effects of property settlement and in the case of Ms Frearson simply not wishing to. Ms Frearson stated on her SS239 Form that she was in a permanent situation at the same address with the Applicant and couldn’t afford to move out. The Applicant claimed on his SS239 that he was also in a permanent situation with Ms Frearson and that, while stating that he had not taken steps to terminate the relationship, gave no reason for not so doing. Both parties have indicated that they expected their arrangements to continue indefinitely.

84.The Tribunal in considering the totality of the nature of the commitment of the parties in this matter each to the other has concluded that, on weighing the available evidence, the Applicant and Ms Frearson are still living as a couple according to the terms of the legislation. This conclusion is based upon the fact that the parties have been together for some fifteen years of which ten of those years they have been officially married. They currently share a house together which is jointly rented by them under a tenancy agreement and they share household expenses and have raised loans in joint names for the purchase of household items and a motor vehicle. The parties have used a common account from time to time for items such the rental on their residence and the transference of funds from a joint account on a regular basis to the personal account of the Applicant. The bank statements indicate purchases were made from both parties’ personal accounts for day to day goods for household use. No evidence exists to indicate that either party has changed their will to the detriment of the other.

85.The parties’ relationship extends back to at least fourteen years and they have remained together since then in a relationship which indicates a degree of emotional and caring respect for each other. The evidence is that, for example, the Applicant has stated that if his wife asks him if he would like some soup, he replies in terms embodying the word “love” by way of expressing his dining preference. She states that she cares for him but that does not in the Tribunal’s view, relegate the relationship between the parties to that of merely carer and care receiver. The relationship in this matter is far more like that of partnered couples.

86.The Tribunal after considering all of the evidence both documentary and oral provided by the Applicant and considered above and having had regard to those matters pursuant to subsection 4(3) of the Act, has concluded that the Applicant is indeed in a partnered relationship with his wife and that the decision under review should be affirmed.

Decision

87.The decision under review is affirmed.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

.............. [SGD]..................
Associate
Dated:  05 July 2021

Date(s) of hearing:	11 February 2021
Applicant (self-represented):	By telephone
Solicitors for the Respondent:	Mr Samuel Harvey