Garde and Secretary, Department of Family and Community Services
[2005] AATA 924
•22 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 924
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/168
GENERAL ADMINISTRATIVE DIVISION ) Re ANNA GARDE Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member Robin Hunt Date22 September 2005
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution decides that Ms Garde is entitled to Disability Support Pension at the single rate from 23 October 2003.
..............................................
Ms R Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension– Applicant living at same address as her former de- facto husband – Claim that living separately and apart at shared address – Not a member of a couple – Decision under review set aside.
LEGISLATION
Social Security Act 1991 ss 4 and 24
CASES
Rendell and Secretary, Department of Family and Community Services [2004] AATA 711
Re Sinanaj and SDSS (1997) 2 SSR 162
Staunton-Smith v SDSS (1991) 32 FCR 164
Marriage of Pavey (1976) 10 ALR 259
Re SDSS and Begum (1998) 51 ALD 187
REASONS FOR DECISION
22 September 2005 Senior Member Robin Hunt SUMMARY
1. Ms Garde is appealing a decision made by the SSAT on 17 January 2005 that she was a “member of a couple” as at 9 December 2003. Ms Garde is receiving Disability Support Pension (DSP) and, if she is not a member of a couple, she will receive a higher rate as it will not be affected by income earned by her partner. Ms Garde wants back pay of the higher rate of DSP from the date she and her former partner, Mr David Rabey, informed Centrelink that they had separated, being 23 October 2003. I have accepted the evidence of Ms Garde and Mr Rabey that they were separated at the time they informed Centrelink and were living separately but still under one roof from this date. Ms Garde and Mr Rabey both suffer from mental illnesses and they offer support for each other. It is for this reason that I have decided that they should not be treated as a couple for the purposes of Ms Garde’s entitlements. It follows that the decision under review is set aside and Ms Garde is entitled to receive DSP at the single rate from 23 October 2003.
ISSUE
2. The issue for the Tribunal to determine is whether Ms Garde was a member of a couple as at 23 October 2003 and if not, when she ceased to be a member of a couple.
3. Section 4 of the Social Security Act 1991 (the Act) provides when a person is a member of a couple for the purposes of social security law. Subsection (2)(b) sets out, in part, that a person is a member of a couple for the purposes of this Act if certain conditions are met. The main question for the Tribunal is that set out in paragraph (iii), as follows :
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
4. Further provisions in subsection 4(3) deal with matters to be taken into account in forming an opinion about the relationship between two people. These relate to financial aspects such as joint ownership of real estate and pooling of financial resources, the nature of the household, the social aspects of the relationship, any sexual relationship between the people and the nature of their commitment to each other. Commitment is illustrated by matters listed such as the length of the relationship and how the people see their relationship.
5. In addition, subsection 24(2) of the Act allows for Ms Garde to not be treated as a member of a couple if a special reason exists. It provides that, where the person is not legally married to the partner; and the relationship between the person and the partner is a marriage-like relationship; and (d) 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.
BACKGROUND
6. Ms Garde and Mr Rabey say they were in a relationship for about 2 years and resided at the same address from June 2001 until March 2005. Ms Garde and Mr Rabey were living apart at the time of the Tribunal’s hearing. Mr Rabey gave oral evidence to the Tribunal in support of Ms Garde’s claim. Mr Rabey and Ms Garde both told the Tribunal that they had notified Centrelink of their change in status when they first decided to live together as a couple on 1 June 2001 and Centrelink had adjusted their pension payments accordingly. However, when they separated and notified Centrelink of this on 23 October 2003, their payments had not changed. They felt that they had been honest with Centrelink at all times and asked that Ms Garde’s full entitlement as a single person be restored from the date she advised Centrelink of the separation. On 17 May 2005, Ms Garde contacted Centrelink to inform them that she had moved out of the formerly shared property on 10 March 2005. Centrelink decided to pay her DSP at the single rate from 19 May 2005. There is no dispute about Ms Garde’s present status.
ANALYSIS
7. As noted above, section 4 of the Act sets out tests as to when a person is a member of a couple. Subsection 4(3) describes matters that the Secretary or Tribunal must consider in forming an opinion about the status of Ms Garde and Mr Rabey. However, in Staunton-Smith v SDSS (1991) 32 FCR 164, the Federal Court stated that the factors in subsection 4(3) is not exhaustive and are only indicators. The preferable course is:
“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”
8. In addition, in the Marriage of Pavey (1976) 10 ALR 259, the Full Court of the Family Court ruled that paries must show why they continue to live under the same roof and be able to point to the factors, either gradual or sudden, that show a change in their relationship, leading to a separation. Therefore, I have considered the statutory factors as well as the whole of the circumstances of the relationship in reaching my decision.
Financial Aspects
9. Ms Garde and Mr Rabey purchased a house as joint tenants on 25 July 2003 at Trunkey Creek and chose the property together. Ms Garde did not contribute to the purchase price of the property. However, her name is on the deed. Since they have split up, Ms Garde gave evidence that she asked Mr Rabey to take her name off the deed. Mr Rabey gave evidence that he plans to change the title but, as it involves legal work, he does not have the funds at the moment to pay to change it. Mr Rabey also has an investment property in Orange in which his parents live. Bluestone Mortgages would not finance the Trunkey Creek property but would finance the property in Orange. Mr Rabey testified that Ms Garde’s name was on the loan application so that he could get a cheaper rate. This was around July 2003 when they were still together. Ms Rabey gave evidence that he had recently refinanced the loan so that it is only in his name and provided a copy of a loan application as evidence, stamped on 2 May 2005.
10. Ms Garde also has a loan with Orange Credit Union for $4,000 which was originally to enable the purchase of a car. The loan is in both of their names as they were together at that time. Ms Garde gave evidence she wouldn’t have obtained a loan without Mr Rabey’s inclusion. Ms Garde gave evidence that she since has asked Orange Credit Union to take his name off her personal loan. However, they have refused. She believed she would have to reapply but then would be refused a loan as she does not earn enough. The loan repayments come straight out of Ms Garde’s DSP and there is just over $3,000 now outstanding. Mr Rabey has offered to repay the loan for her, as he derived a benefit from the car, but she has not taken him up on his offer. At present, the car is unregistered and Mr Rabey does not like to drive it due to this.
11. Ms Garde and Mr Rabey pooled their financial resources whilst living together at Trunkey Creek and shared major assets such as the car and the house. Mr Rabey paid most of the bills for the household and Ms Garde’s pension contributed to the electricity, MasterCard bill, telephone, veterinarian bills and repayments for the loan for her car, which Mr Rabey used regularly. Ms Garde did not pay rent or board to Mr Rabey. Mr Rabey gave evidence that he considered charging Ms Garde rent once they had separated but did not because of his goodwill towards her and his wish to assist her through her personal difficulties. Mr Rabey gave evidence that he wanted to continue to look after Ms Garde when she was suffering clinical depression and could not mange on her own. He had similarly helped other friends when they were in the same situation. He paid a bit more than Ms Garde towards upkeep of the household because he had more money and felt it was the right thing to do. Ms Garde gave Mr Rabey her ATM card so he could withdraw money from her account for food and medication but has since asked for its return. Mr Rabey gave evidence that both he and Ms Garde had continuing episodes of clinical depression and Ms Garde told the Tribunal that she had been admitted to hospital due to this condition. They tried to look after each other and others they knew who had this problem. Mr Rabey was asked whether he recalled having a phone interview with a Centrelink social worker on 5 May 2004 and he did. He does not recall saying “I don’t mind paying the bills” but says he was very ill at that time. From these circumstances, it is clear that Mr Rabey and Ms Garde did continue to mingle their finances to a degree after they say they separated.
12. In the case of Rendell and Secretary, Department of Family and Community Services [2004] AATA 711, Member Trowse held that an arrangement based on mutual affordability of housing and material welfare did not of itself correspond to a marriage-like relationship. I accept that, in the present case, although Ms Garde did not pay Mr Rabey any rent, their living arrangement was based on mutual contributions and what was affordable for both. Both contributed to the bills more or less equally. Although Ms Garde was a joint owner of the Trunkey Creek property, she has renounced any continuing entitlement. Mr Rabey has given oral evidence that he will take steps to change the title and has applied for a loan in his own name to assist. Mr Rabey is legally joined with Ms Garde for the car loan but Ms Garde is making all of the payments. I accept that she will not be able to obtain another loan at present in her own right. Mr Rabey at one stage had Ms Garde’s ATM card, however, this was merely for convenience in order for him to pick up her medication and some food when she was incapacitated.
Nature of the household
13. Ms Garde and Mr Rabey both have children from previous relationships who sometimes stayed with them at their former shared home. Ms Garde has a teenage daughter and Mr Rabey had a teenage son. Ms Garde did not get along with Mr Rabey’s son. Mr Rabey said he had a good relationship with Ms Garde’s daughter and Ms Garde said that her daughter loved Mr Rabey and that they shared an interest in music, as they are both musicians. After Mr Rabey and Ms Garde separated but continued to live under the one roof, I accept their oral evidence that they had separate living and sleeping arrangements.
14. Ms Garde told the Tribunal that she had her own room at the back of the house and Mr Rabey had the bedroom at the front with a separate entrance. Later, Ms Garde moved out of the Trunkey Creek house, on 10 March 2005, as Mr Rabey asked her to leave. Mr Rabey told the Tribunal he was not well at the time and was drinking heavily. He could no longer look after Ms Garde as well as cope with his own problems. However, they each said that they continued to care for each other and wished each other well. At the time of moving out, Ms Garde took all of her things including cutlery, crockery, bedroom drawers and some small things. Most of the furniture was Mr Rabey’s. In relation to the disposal of household goods, Ms Garde gave evidence she did not approach a solicitor as she trusted Mr Rabey
15. After the separation and before she moved out, Mr Rabey took some continuing responsibilities for Ms Garde. He did some shopping for her and she gave him her credit card for the purpose. He said he no longer cooked for her. Ms Garde did the indoor housework and laundry and Mr Rabey tended the garden and outside chores. They very rarely ate together as Ms Garde ate in front of the television but Mr Rabey has hearing trouble so he didn’t watch with her.
16. I consider that the household continued as a shared one but was not the norm although Mr Rabey helped Ms Garde and they did not have a dramatic falling out. He explained that there was a community of people who suffered depression and they supported each other. He had done as much for other friends in this situation. It is clear that they each formed part of a household that was shared but, at the same time, they lived apart in many respects. I accept that Mr Rabey’s motive was to continue to assist Ms Garde as she was unwell.
Social aspects of the relationship
17. Mr Rabey named Ms Garde as his spouse taxation returns for the years ending 30 June 2002 and 2003. He told the Tribunal that as he was ill, he had not lodged his return for the year ending 30 June 2004 but, when he does, he is planning to put that Ms Garde was dependent from 1 July 2003 to 29 September 2003 only.
18. When Ms Garde was asked who knew of the separation in the 2003, Ms Garde said she had told her only friend, Ms Murphy, who provided a letter for the proceedings. Ms Garde stated that Mr Rabey’s friend, Mr Smith also knew. Mr Rabey told the Tribunal that his family knew they were having problems but not that they had separated at the time in question. Ms Garde did not provide this evidence to previous decision-makers and it is not strong evidence of the awareness of any social network that they had separated.
19. Ms Garde further stated that they did not socialise together frequently before the separation and not at all afterwards. Since July 2003, when they moved into the Trunkey Creek property, they went on no holidays together. Mr Rabey told the Tribunal that he went to the pub but Ms Garde did not accompany him. He previously had performed at the pub and local gigs as a musician and Ms Garde had sometimes accompanied him to gigs. That stopped after they separated. As well, of course, the former couple notified Centrelink of their separation. Overall, the evidence before the Tribunal of social aspects does not advance the quality of evidence of the separation particularly.
Sexual relationship
20. The parties told the Tribunal that they no longer had a sexual relationship. Counsel for the Secretary indicated she accepted this. I note this is only one aspect of the tests of whether persons are a couple and is not conclusive on its own.
Nature of Mr Rabey and Ms Garde’s commitment to each other
21. In terms of the parties’ commitment to each other, I have formed the view that they are still committed in some respects. For example, they both say they still care for each other and would not like to see the other come to harm. They are both concerned about each other’s mental health. In October 2003, Ms Garde was admitted to hospital and Mr Rabey was nominated as her emergency contact person as she didn’t want her parents to know she was ill. In April 2004, when Mr Rabey injured himself with a power tool, Ms Garde rang the ambulance and followed by car until her car broke down before she got to the hospital. She stated that she did what any person would do in circumstances where someone was injured. Similarly, Mr Rabey said she did what any humane person would do.
22. Mr Rabey told the Tribunal that mentally ill people he knew form a collective and look after one another. He gave evidence that he had looked after another female friend who stayed with him for about a month at Trunkey Creek after he and Ms Garde had separated. He did this for other depressed people they had met in hospital because they understood each other.
23. Mr Rabey told the Tribunal that he had hoped for a reconciliation up until a few months before Ms Garde moved out and told a Centrelink social worker in a phone interview on 5 May 2004 that he would like it if Ms Garde came back into the relationship. However, he realised that it was impossible due to difficulties between Ms Garde and his son, his own mental health and Ms Garde’s complex needs.
24. In the form filled out by Ms Garde on 28 October 2003 (T6,32) advising Centrelink of their separation, Ms Garde stated that she considered their relationship was similar to one of marriage. When questioned about this at the hearing, she stated she probably said that because married couples fight. However, Mr Rabey in his form (T7,40) stated that their relationship was different to marriage as it was purely platonic.
25. Although there are many indicators of a marriage-like relationship between Ms Garde and Mr Rabey that continued after they declared they had separated, on 23 October 2003, I have taken into account that both Ms Garde and Mr Rabey suffer from bouts of depression and have tried to assist each other. I accept that their situation is different to that of a normal couple even though they provide ongoing support to each other. Their relationship has become one similar to that of lifelong friends. As a result, I find that the nature of their commitment to each other does not conclusively make it a marriage-like relationship.
CONCLUSION
26. Both Mr Rabey and Ms Garde gave evidence in a straightforward manner and I accept that they are witnesses of truth. There are many indicators of a marriage-like relationship that continued after their separation and notification to Centrelink on 23 October 2003. I have taken into account the required factors under section 4. However, on balance, I find that the full circumstances of the situation lead me to conclude that the relationship was no longer marriage-like but one of compassionate mutual assistance to overcome their mental illness problems and particular difficulties in coping with life through the time in question.
27. Even if I am wrong in my overall assessment, I note that section 24 gives me a discretion where a person is in a marriage-like relationship but there is a special reason in the particular case not to treat the person as a member of a couple. Although perusal of cases in which section 24 has been applied shows it usually has been applied to couples who are legally married and live in different countries (see Re Sinanaj and SDSS (1997) 2 SSR 162 and Re SDSS and Begum (1998) 51 ALD 187), paragraph (b) covers persons who are not married. I see no reason why this subsection should not cover the present case. Accordingly, I find that in this particular case, as Ms Garde was incapacitated by depression during the period she continued to live under the same roof as Mr Rabey, this is a sufficient reason to warrant the exercise of the discretion in her favour.
DECISION
28. The Tribunal sets aside the decision under review and in substitution decides that Ms Garde is entitled to Disability Support Pension at the single rate from 23 October 2003.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: .....................................................................................
Zoe McDonald
AssociateDate of Hearing: 25 July 2005
Date of Decision: 22 September 2005
Solicitor for the Applicant: Self
Counsel for the Respondent: Ms Green
Solicitor for the Respondent: Centrelink Legal Services
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