Fredrick and Secretary, Department of Social Services (Social services second review)
[2016] AATA 475
•5 July 2016
Fredrick and Secretary, Department of Social Services (Social services second review) [2016] AATA 475 (5 July 2016)
| Division | GENERAL DIVISION |
| File Number(s) | 2016/0170 |
| Re | Brian Fredrick |
| APPLICANT | |
| And | Secretary, Department of Social Services |
| RESPONDENT |
DECISION
| Tribunal | Member D K Grigg |
| Date | 05 July 2016 |
| Place | Brisbane |
The decision under review is affirmed.
............................[sgd]...........................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – age pension – whether member of a couple – consideration of special circumstances and whether they exist – Tribunal decides that Mr Fredrick is a member of a couple.
LEGISLATION
Social Security Act 1991 (Cth)
CASES
Secretary, Department of Education, Employment and Workplace Relations v Holmes [2008] FCA 105
Re Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; 32 FCR 164
Re Lambe v Director-General of Social Services (1981) 4 ALD 362
Main v Main (1949) 78 CLR 636
Bada v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 671
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531; 53 ALD 277
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Cocks v Centrelink [2000] FCA 1248
SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1
Secretary, Department of Families, Housing, Community Services & Indigenous Affairs and Nicolaas [2009] AATA 416
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Purdie and Secretary, Department of Social Services [2013] AATA 743
SECONDARY RESOURCES
Guide to Social Security Law
REASONS FOR DECISION
Member D K Grigg
05 July 2016
INTRODUCTION
Mr Fredrick is a recipient of the aged pension.
The rates at which people (who are not permanently blind) are paid an aged pension is determined using the Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991 (Cth) (the ‘Act’).[1] The maximum basic rate payable varies depending upon a person’s family situation. The maximum basic rate payable to a member of a couple is less than that of a person who is not a member of a couple.[2]
[1] Section 55(a), Act.
[2] Section 1064-B1, Act.
On 10 July 2015 Mr Fredrick married Ms Rodilyn Vender, a resident of the Philippines.[3] He notified the Department of Human Services (Centrelink) of his marriage on 31 July 2015.
[3] Exhibit 1, T Documents, T12, page 69. Exhibit 1, T Documents, T6, page 46 and T8, pages 49-60.
As a result of the change in Mr Fredrick’s marital status Centrelink determined that Mr Fredrick’s pension should be calculated at the couple rate and not the single rate.
Mr Fredrick argues that despite his marriage his aged pension should still be calculated at the single rate.
Claim History
Mr Fredrick requested that he continue to be paid at the single rate pursuant to section 24 of the Act.
Section 24 relevantly provides:
(1) Where:
(a) a person is legally married to another person; and
(b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
On 6 August 2015 Centrelink refused to apply payment at a single rate pursuant to section 24 on the basis that Mr Fredrick and his partner were not in financial difficulty.[4]
[4] Exhibit 1, T Documents, T9, pages 61-62.
Mr Fredrick then sought a review of that decision by an Authorised Review Officer (“ARO”) on the basis that he believed he would be paid as a single person because his wife lived overseas. The appeal to the ARO was unsuccessful on the grounds that:[5]
(a)Mr Fredrick and his wife were not living separately or apart on a permanent or indefinite basis (section 24(1)(b)); and
(b)no special reason, such as financial difficulty, existed to not treat Mr Fredrick as a member of a couple (section 24(1)(c)).
[5] Exhibit 1, T Documents, T10, pages 63-66, Authorised Review Officer’s letter and decision dated 30
September, 2015.
In October 2015, Mr Fredrick then lodged an application for review with the Social Security and Child Support Division of the AAT (the “SSCSD”). The SSCSD rejected Mr Fredrick’s claim and affirmed the ARO’s decision in December 2015.[6]
[6] Exhibit 1, T Documents, T2, pages 3-9, SSCSD's Decision and Reasons for Decision dated 9
December 2015.
Mr Fredrick has sought a review of the SSCSD’s decision by this Tribunal.
ISSUES FOR DETERMINATION
In order to decide whether Mr Fredrick’s aged pension should be calculated at the single rate, despite his marriage, the following issues have to be determined:
(a)whether or not Mr Fredrick is a “member of a couple”;
(b)whether or not Mr Fredrick should, for a special reason in the particular case, not be treated as a member of a couple (s 24(1)(c));
And then,
(c)whether I should exercise a discretion to determine that Mr Fredrick is not to be treated as a member of a couple for the purpose of calculating his aged pension.
IS MR FREDRICK A MEMBER OF COUPLE?
Section 4(2) of the Act, relevantly, defines a person as a “member of a couple” if the person is:
(a)legally married; and
(b)not, in the Secretary's opinion (formed as mentioned in subsection 4(3)), living separately and apart from the other person on a permanent or indefinite basis.
Mr Fredrick is married
The Marriage Act 1961 (Cth) (the ‘Marriage Act’) defines marriage to mean “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” (section 5). Section 88E(1) of the Marriage Act recognises in Australia a marriage solemnised overseas.[7]
[7] There are some exceptions however they do not apply here.
There is no dispute that Mr Fredrick is married.
Are Mr and Mrs Fredrick living separately and apart from each other on a permanent or indefinite basis?
In order to form an opinion about whether or not Mr and Mrs Fredrick are living separately and apart from each other on a permanent or indefinite basis, I must have regard to the matters set out in section 4(3).
Section 4(3) provides:
(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.
In relation to a married couple Logan J in Secretary, Department of Education, Employment and Workplace Relations v Holmes [2008] FCA 105 said:
[17] In the case of a legally married couple what s 4(2)(a) requires is the forming of an opinion by the Secretary as to whether one party to that marriage is “living separately and apart from the other person on a permanent or indefinite basis”. That there is a relationship in form is a given flowing from a prior transaction of lawful marriage with the concern being whether, in substance and having regard to the considerations mentioned in s 4(3), the couple are, in the Secretary’s (or in his place the Tribunal’s) opinion, living separately and apart on a permanent or indefinite basis.
“The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based”: re Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; 32 FCR 164 at [21].
I will now consider the circumstances of Mr Fredrick’s relationship.
Consideration of Mr Fredrick’s Relationship
Mr Fredrick has only been married for 11 months. At this stage Mrs Fredrick, a citizen of the Philippines, continues to live in the Philippines and has never travelled to Australia.[8]
[8] Exhibit 1, T Documents, T8, page 51, Mod-P Partner Details Form dated 5 August 2015.
Since the marriage ceremony Mr Fredrick has visited the Philippines on one occasion.[9]
The financial aspects of the relationship: section 4(3)(a)
[9] Between 8 November 2015 and 6 December 2015Exhibit 1, T Documents, T17, page 74,
Immigration Advised Movements.
Mr and Mrs Fredrick do not jointly own any real estate or major assets and do not have any joint financial commitments.[10] His wife has no other known assets.[11] Mr Fredrick said his wife comes from a very poor family.
[10] Exhibit 1, T Documents, T1, page 2, Application for Second Review by Mr Fredrick dated 11 January
2016; Exhibit 3, Applicant’s Submissions dated 29 April 2016.
[11] Exhibit 1, T Documents, T8, pages 53-54, Mod-P Partner Details Form dated 5 August 2015.
Mr Fredrick says he has no access to his wife’s funds (which at the date of the marriage equated to approximately $178.00/month) as she needs them to live.[12]
[12] Exhibit 1, T Documents, T6, page 46, Section 24 Referral.
Mrs Fredrick is not an Australian citizen and cannot benefit under the Australian welfare scheme.
They currently live apart and do not share any household expenses.[13]
[13] Exhibit 3, Applicant’s Submissions dated 29 April 2016.
At the date of marriage Mrs Fredrick was working in a factory in Cebu earning an income. At that time Mr Fredrick says he assisted his wife financially by paying for her accommodation and paying hire purchase payments for her motorcycle (approximately 5,000 pesos a month). Mr Fredrick also purchased a fan, television and cable connection for his wife. Mr Fredrick says a few months ago Mrs Fredrick lost her job and returned to work at her parents’ pig farm in Tabuelan. Mr Fredrick says her parents provide his wife with food and accommodation but do not pay her an income. As a result of her changed circumstances Mr Fredrick says he no longer pays for her accommodation but he continues to make the hire purchase payments for the motorcycle (approximately 2,264 pesos a month).
Mr Fredrick has paid for his wife to have necessary extensive dental treatment.
The Respondent submits that these circumstances demonstrate that the parties had come to an agreement about financial matters and therefore they “pooled” resources.
Mr Fredrick submits that although he would be prepared to assist his wife with further financial assistance if she requested, and he thought it reasonable to do so, they do not “pool” resources. His wife’s income whilst employed at the factory was the equivalent of AUS$1 per hour.
In re Lambe v Director-General of Social Services (1981) 4 ALD 362 at 369, the Federal Court held that “financial support, [while] important, is not necessarily crucial, and is only one of a number of relevant matters which the Tribunal should take into account …”.
Clearly Mr Fredrick receives no benefit from whatever income Mrs Fredrick has made. There is no “significant pooling of resources”.
However, on balance I find that the regular financial contributions made to assist Mrs Fredrick’s living situation point in favour of Mr Fredrick being a member of a couple.
The nature of the household: section 4(3)(b)
Mr and Mrs Fredrick live apart and have done since the commencement of their relatively short marriage. Mr Fredrick resides in a rental property in a retirement village. Their respective households, in different countries, are organised completely independently of each other.
When Mr Fredrick visits his wife in the Philippines they stay in a hotel as it is too physically uncomfortable for Mr Fredrick to sleep at the farm.[14]
[14] Exhibit 3, Applicant’s Submissions dated 29 April 2016.
They do not have children together and do not care for or support any children.[15] Mr Fredrick says he is unable to have children and informed Mrs Fredrick of this prior to their marriage.
The social aspects of the relationship: section 4(3)(c)
[15] Exhibit 1, T Documents, T1, page 2, Application for Second Review by Mr Fredrick dated 11 January
2016; Exhibit 3,
Applicant’s Submissions dated 29 April 2016.
Mr and Mrs Fredrick, given their residential situation, do not engage in any regular joint social activities.[16] They are in weekly email contact. Email contact is all they can currently arrange given Mrs Fredrick’s current living and financial circumstances. Mr Fredrick says he can only contact his wife when she comes into town and even then only by email.
[16] Exhibit 1, T Documents, T1, page 2, Application for Second Review by Mr Fredrick dated 11 January
2016; Exhibit 3,
Applicant’s Submissions dated 29 April 2016.
No evidence was given by friends and associates of Mr Fredrick or Mrs Fredrick about their assessment of the nature of the relationship. However Mr Fredrick informed the Tribunal that:
(a)their respective families are aware of the marriage;
(b)he followed and respected his wife’s family tradition and asked her father’s permission to marry;
(c)he has met with his wife’s family on a couple of occasions and they accept he is Mrs Fredrick’s husband;
(d)his brother and sister are unhappy about the marriage because they no longer stand to benefit from his estate.
Mr Fredrick has told nurses who sometimes come to assist him with everyday tasks, such as shaving, about his marriage.
There is no suggestion that the parties have “separated”, or intend to, or that they do not hold themselves out as married.
Any sexual relationship: section 4(3)(d)
The SSCSD Decision records that Mr Fredrick and his wife have had sexual relations since the commencement of their marriage.[17] However, Mr Fredrick told the Tribunal that he is physically unable to have sexual intercourse and that this condition has continued since he was 16 years old. However, he has never sought any medical advice or assistance.
[17] Exhibit 1, T Documents, T2, page 7 (para 22), SSCSD’s Decision and Reasons for Decision dated 9
December 2015.
Regardless of whether or not they have had sexual intercourse Mr Fredrick confirmed that he and his wife kiss, cuddle and hold hands when they are together (although I note this has not been often).
The Respondent submitted that Mr Fredrick displays affection in the way he can and according to Mr Fredrick his wife accepts that.
Mr Fredrick says sex is not everything and they are fond of each other. However, he said that the relationship is more than one of a “brother and sister”.
The nature of Mr and Mrs Fredrick's commitment to each other: section 4(3)(e)
Mr and Mrs Fredrick have only been married for 11 months. There is no suggestion that the parties have “separated” or intend to. Mr Fredrick says he loves his wife and he believes that his wife is fond of him.
There is no indication that Mr Fredrick believes the marriage will not continue.
Mr Fredrick is planning to bring his wife to Australia so that they can live together as a couple in his unit. He intends to pay for his wife’s visa application, although the process may take some time.
Mr Fredrick says he began investigating visa options for his wife in April 2016 when his term deposit matured.
Mr Fredrick believes he is in a difficult position because Centrelink consider him to be a member of a couple, while on the other hand, he says he does not meet the criteria for a spousal visa as required by the Department of Immigration and Border Protection. He says that his wife cannot obtain a tourist visa because she owns no assets in the Philippines and he cannot, despite attempting to, open a joint bank account in Australia without his wife being physically present in Australia. He says he is going to lobby government if his wife is not successful in being allowed to come to Australia.
To date no visa application has being lodged. Mr Fredrick appeared to be quite stressed about this situation. He says he has not paid for a visa application yet because he wants the Department to confirm the application would have good prospects of success before doing so. Mr Fredrick has gone to a local immigration legal service centre for advice.
Mr Fredrick decided not to call Mrs Fredrick to give evidence because of the difficulties in being able to contact her at the farm where she resides. Despite this, Mr Fredrick says both he and his wife want her to come to Australia.
Further, Mr Fredrick has provided for his wife financially in the future by altering his Will naming Mrs Fredrick as beneficiary of 90% of his estate.
I find as a result that Mr Fredrick is clearly committed to the relationship and the marriage.
Conclusion – Section 4(3)
I find that the financial assistance given to Mrs Fredrick, the alterations made to Mr Fredrick’s Will, the investigations already undertaken into applying for Mrs Fredrick’s visa application and the intention to live together as a couple in the future are consistent with actions taken by those who are members of a couple.
Are Mr and Mrs Fredrick living separately and apart from each other on a permanent or indefinite basis?
Mr and Mrs Fredrick are clearly living physically apart. However, it is important to note here that the phrase “living separately and apart” requires more than mere physical separation of members of a couple. The Courts have held that what is required is a breakdown of the marital relationship not just physical separation.[18]
[18] See, for example, Main v Main (1949) 78 CLR 636; Re Trail and Secretary, Department of Social
Security (1986) 9 ALD 128; Re Hallak and Secretary, Department of Social Security (1990) 20 ALD
527; Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
The word “indefinite” is defined in the Macquarie Dictionary relevantly as follows:
1. not definite; without fixed or specified limit; unlimited ...
2. not clearly defined or determined; not precise.
Mr Fredrick submitted that because it was uncertain when and if Mrs Fredrick could come to Australia that he is living separately and apart from his wife on an indefinite basis.
However, Mr Fredrick’s physical separation is not intended to be permanent.
The basis upon which they are living apart is precise and fixed – it is only until such time as Mrs Fredrick obtains a visa enabling her entry into Australia. In that sense, as the Tribunal observed in Re Secretary Department of Families, Housing, Community Services and Indigenous Affairs and Robinson [2008] AATA 672, “their geographic separation would end once those particular circumstances changed, and although they could not know when that would happen, they did know that they would be together once it did”.[19]
[19] [2008] AATA 672 at 16.
This is a relatively new marriage. There is no evidence before me to indicate that the marital relationship has broken down. Since they were married, Mr Fredrick:
(a)has made regular financial contributions to Mrs Fredrick including planning for her financial future;
(b)is continuing his investigation of visa options for his wife;
(c)says he has ensured that he has special clearance from his retirement home operators to allow Mrs Fredrick to reside with him.
Mr Fredrick’s physical separation from his wife will end when she obtains an entry visa into Australia.
I therefore find that Mr and Mrs Fredrick are not living separately and apart on a permanent or indefinite basis.
Conclusion – not living separately and apart from each other on a permanent or indefinite basis
In light of the above evidence I conclude that Mr Fredrick is a member of a couple under section 4 of the Act.
IS THERE A SPECIAL REASON THAT MR FREDRICK SHOULD NOT BE TREATED AS A MEMBER OF A COUPLE PURSUANT TO SECTION 24?
As I have found that Mr Fredrick is a member of a couple I must now consider whether there is, for the purposes of s 24(1)(c) of the Act, a special reason why Mr Fredrick should not be treated as a member of a couple.
What must be considered is the position of Mr Fredrick, not the position of the couple of which he is a member: Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [20] per French J.
The Respondent referred me to the Guide to Social Security Law (the ‘Guide’) which is used by the Department. Section 2.2.5.50 of the Guide sets out how section 24 is to be applied. The Tribunal is not bound to apply the Guide but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[20]
[20] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Section 2.2.5.50 provides that the questions to be considered are whether there is:
(a)A special reason in this couple’s circumstances;
(b)A lack of being able to pool resources as a result of the couple’s circumstances;
(c)Financial difficulty as a result of the couple’s circumstances.
The core requirement for “special reasons” is that there be something “unusual or different”: French J in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084 at [37].
I note there is some debate as to whether section 24 poses three questions or not.[21] While financial difficulty and an ability, or lack thereof, to pool resources may be relevant in the circumstances to an exercise of the discretion, they are only relevant if they constitute a “special reason” which is all the section prescribes.
[21] See Purdie and Secretary, Department of Social Services [2013] AATA 743 at [14].
In Cocks v Centrelink [2000] FCA 1248, O’Loughlin J said that it may be appropriate to exercise the discretion where a couple could not pool resources. In that case Mrs Cocks had nothing to contribute to the pool. In Secretary, Department of Families, Housing, Community Services & Indigenous Affairs and Nicolaas [2009] AATA 416 however it was found that although the applicant’s partner was unable to contribute to the pooling of resources it did not weigh in favour of exercising the discretion. Each situation has to be considered based on its own circumstances.
While Mrs Fredrick is ineligible for income support in Australia, there is no evidence that Mr Fredrick is in financial difficulty. As at 5 August 2015 Mr Fredrick had:
(a)a term deposit with the Commonwealth Bank of Australia totalling $108,080.67 (which he says now totals approximately $90,000);[22]
(b)Telstra shares valued at $2,512;[23] and
(c)AMP shares valued at $3,420.[24]
[22] Exhibit 1, T Documents, T7, page 48 and T8, page 54.
[23] Exhibit 1, T Documents, T5, page 44, Departmental File Notes (Electronic).
[24] Exhibit 1, T Documents, T5, page 44, Departmental File Notes (Electronic).
Mr Fredrick is not in financial difficulty. This was not argued by Mr Fredrick.
Mr Fredrick raised no other “special reason” which may exist to enliven the discretion in section 24.
CONCLUSION
Mr Fredrick’s appeal fails. He is a member of a couple for the purposes of the Act and no special circumstances exist to treat him differently.
The decision under review is affirmed.
| I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg |
....................[sgd]...................................
Associate
Dated 5 July 2016
| Date of hearing | 17 June 2016 |
| Advocate for the Applicant | (self-represented) |
| Solicitor for the Respondent | Robert Hamilton, Department of Human Services |
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