Green and Secretary, Department of Families and Community Services and Indigenous Affairs

[2006] AATA 601

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 601

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1574

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WILLIAM GREEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES & COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date22 June 2006

PlaceSydney

Decision

For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

The oral reasons for decision have been transcribed by Auscript and are furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

[Sgd]Ms G Ettinger   Senior Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements - disability support pension -whether the applicant is a member of a couple – applicant claims to be separated, living under one roof with is wife - decision under review is affirmed.

Social Security Act 1991- section 4

Re Staunton-Smith v Secretary, Department of Social Security, (1991) 25 ALD 27

In the Marriage of Pavey (1976) 10 ALR 259

In the Marriage of Todd No.2 - (1976) 9 ALR 401

REASONS FOR DECISION

22 June 2006 Ms G Ettinger, Senior Member     

BACKGROUND

1. Mr William Green appeared this morning to appeal against the decisions of the Secretary, Department of Families, Community Services and Indigenous Affairs as affirmed by the Social Security Appeals Tribunal which held that Mr Green's pension should be reduced because he is a member of a couple pursuant to section 4 of the Social Security Act 1991.  Mr Green, whose date of birth is 2 November 1939, had been receiving disability support pension, with Mrs Green receiving payment for being his carer.  He then became eligible for aged pension.  Mrs Green moved to full time employment in 2003 and ceased being his carer.

2.      Mr Green was self-represented at the hearing and gave oral evidence.  He is legally married, having been married for some 15 years he says, but claims to be separated, living under one roof with his wife.  Mrs Green was to have attended to give evidence, but Mr Green said that she works as a nurse in a disability and aged care establishment, and was unable to attend.  As there was no statement from Mrs Green, I had no evidence regarding the marriage from her, before me. 

3. The advocate for the Respondent was Mr Duri. I had documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act (1975) as Exhibit R1, and a print-out from the ATO as Exhibit R2.  Mr Green tendered a letter dated 16 June 2006 from his friend Robert Belford, which is Exhibit A1, and a letter from his Parish Priest, Father Peter Lamont, dated 7 June 2006 which is Exhibit A2. 

4.      Mr Green also showed me a newspaper cutting from the Sunday Telegraph dated 11 December 2005 which included a photograph of Mr Philip Ruddock, and was headed "All children need the support of both parents”.  Mr Green was keen for me to know that the couple described in the article had stayed under one roof for the sake of their children, because children need two parents. He emphasised that he and his wife are separated, (living under one roof), and have been thus since they took the decision to separate in May 2005.

ISSUE BEFORE THE TRIBUNAL

5. The issue I had to decide was whether Mr Green's pension should have been reduced. That depends on whether he is a member of a couple pursuant to section 4 of the Social Security Act 1991. That is the relevant legislation in this matter. Section 4 outlines the circumstances to be considered when determining whether a person is a member of a couple:

A person is a member of a couple for the purposes of this Act if the person is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis.   

So I then moved to section 4(3):

In forming an opinion about the relationship between two people certain indicia are taken into account.  They include the financial aspects of the relationship -

and there are subheadings for that -

the nature of the household, the social aspects of the relationship, any sexual relationship between the people and the nature of the commitment the people have to each other.

Each of those subheadings can be considered, including of course, there are other areas that might assist.

CONSIDERATION OF THE ISSUES

6. So in coming to a decision I've considered all the evidence, written statements, case law and legislation regarding the applicant's situation, and whether he is a member of a couple pursuant to section 4 of the Act. I had to decide whether Mr Green, being legally married to Elsa Green, was living separately and apart from her on a permanent and indefinite basis, and whether that commenced, as claimed, in May 2005.

7.      Mr Green gave as the main reasons for the separation, the fact that after Mrs Green started working outside the home in 2003 she started going out and not telling him where she was going.  He mentioned that when he rang the place where she said she was going, sometimes he was redirected to another party, and that this led to a breach of trust situation. 

8.      Mr Green said that as a result there was a lot of screaming and yelling, and they felt that was not good for the children, hence the decision to separate in May 2005.  Mr Green said that after that date there was no fighting because Mrs Green was free to do as she pleased. 

9.      To whether the children know; after first telling me that they had not told the children about the separation, Mr Green changed his evidence, and said that when the children were told, they were upset, but accepted the situation and quietened down when their parents informed them that no one would be moving out.  I pointed out this inconsistency in the evidence to Mr Green, who became agitated.  He told me he was a sick man, and on medication, and not well educated, but that he was an honest person.

10. In coming to the correct or preferable decision I have had regard to the indicia in section 4(3) of the Act as I mentioned above, and I have considered several decisions including Re Staunton-Smith v Secretary, Department of Social Security, (1991) 25 ALD 27, and In the marriage of Pavey (1976) 10 ALR 259. Both of those elucidated a common principle, that the question of whether a couple are living separately and apart is one of fact and degree, requiring all the circumstances of the particular case to be taken into account, including the financial aspects, the nature of the household, the social and sexual aspects of the relationship, and the nature of the commitment. These issues have, amongst others, each been considered and a global, holistic view formed.

11.     I'm mindful that his Honour O'Loughlin J in Staunton-Smith opined at page 35:

I'm of the opinion that it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other.  It is necessary to delve deeper to find the reasons for those arrangements.  Those reasons will be better indicators in determining the correct nature of the relationship.

Nature of the Household

12.     I moved then to look at the nature of the household.  In considering the nature of the household, I have noted that Mr Green is 67 years old and has major health problems, having been on disability support pension previous to his qualification for aged pension.  Mr Green told me that he has had three heart operations, that he has prostate cancer and back problems, and has recently been diagnosed with manic depression from which he feels he has suffered for some time.  Mr Green is not in the paid workforce, and is at home for the children which enables Mrs Green to hold down a very busy job as a nurse, working shift work and overtime. 

13.     He was unable to say if Mrs Green ever had weekends or days off, and told me that she was often rung at unusual times if her employer needed her to work.  Mr Green says that he used to do all the shopping, but that Mrs Green now shops for herself and the children.  He says that he finds it easy to cook for himself because he lives on sausage meat and toast while Mrs Green cooks Filipino food.  He told me that they do not eat together, but when Mrs Green is there the children eat with her.  He said that she does not give him money, and he needs his pension to survive. 

14.     From evidence I have discussed elsewhere in these Reasons, I have noted that Mrs Green, whilst she may not give Mr Green cheques or cash, supports the household by paying the majority of the rent, the car insurance and other items.  Mr Green has taken over the cleaning of the house which he says he can do in spite of his back because he can take his time over the kitchen and household chores.  He said that Mrs Green does her own washing and the children’s, and he does his own. 

15.     I was satisfied that the evidence indicated that Mr and Mrs Green may not have been happy together in recent times but that it is a household where the male member of the couple, who does not work outside the home, maintains the home and cares for the children, and the female member is in the workforce.  Mr and Mrs Green own and drive one car which is registered in Mr Green's name.  Mrs Green pays the insurance, he said.  Mr Green said that he drives Mrs Green to and from work, and the children to and from school.  They all go to church, but if Mrs Green is at home she will take the children, and he will go separately. He feels that they see so little of her that it is a good opportunity of bonding with their mother. 

16.     Mr Green said that the sleeping arrangements are that he has the master bedroom, the children each have a room, and Mrs Green shares with one of the children. 

17.     The letter of Mr Belford states that the Greens live apart under the same roof for the benefit of the children, and work together to provide a home environment for their children.  Mr Green's evidence was that the Belfords often visit with their children, and that he, Mr Green and Mr Belford converse, while the wives, both Filipinas, converse in Tagalog.  The Belford children, who are younger than the Green children, stay with them from time to time.

18.     Father Lamont also stated in his letter that Mr Green had informed him that he was separated and that both parents are concerned with the protection and welfare of their children.  From the above evidence I was satisfied that the household functions as a joint responsibility, now, even more so since Mrs Green commenced paid work in 2003.  Mr Green has taken over the housework and chores because Mrs Green is not there a lot of the time, and looks after the children and cooks for them when their mother is working.  He drives Mrs Green and the children to and from work and school as if they were not separated.  I am satisfied, from all the evidence, that Mr and Mrs Green demonstrate to me that from the aspect of the nature of the household, they are members of a couple. 

I move then to consider the financial aspects of the relationship. 

Financial Aspects of the Relationship

19.     As to finances, I note that it was not in dispute that the lease of the Housing Commission house in which Mr and Mrs Green and their two children, aged 15 and 11 live, is in Mr Green's name.  Mrs Green pays the great majority of the rent, the car insurance of the one car they both drive, and food for herself and the children. 

20.     Exhibit R2 is a print-out from the ATO for the year 2004-5 in which Mrs Green has noted her spouse's name as James Green, and given his date of birth, being 2 November 1939.  She has also replied “yes” to the question, "Did you have a spouse for the full year, 1 July 2004 to 30 June 2005?" 

21.     After consideration of the evidence regarding Mr and Mrs Green's financial arrangements, I was satisfied that their financial circumstances were indicative of a married couple living together where expenses were shared.  On the basis of the evidence regarding the financial arrangements between the parties as discussed above, I was not satisfied that there has been a separation in terms of the legislation, and find that Mr Green is a member of a couple in relation to the financial arrangements. 

Social Aspects of the Relationship

22.     I then move to consider the other indicia, commencing with social aspects of the relationship.  Mr Green said that the main social relationships were those Mrs Green has conducted on her own since she commenced work in 2003, and that these aggravated him to the extent that the couple separated. 

23.     However, I noted that Robert Belford and family still visit the Greens as they always have, and that the men talk while the wives spend time together speaking in Tagalog, their native tongue.  There was no indication to satisfy me that this had changed at all since the claimed separation in May 2005.

24.     I noted that Mr Green gave evidence which the Social Security Appeals Tribunal recorded at paragraph 13 of its decision, that he did not publicise the separation.  However, he told me at the hearing today that all the parishioners at his church know about the separation.  I have had no further corroboration of that information. 

25.     Mr Green told me that neither he nor his wife have plans to move out of the house because they have a commitment to the children, and because they cannot afford it.  Besides, Mrs Green could not work if Mr Green had not taken over the care of the children.  I was curious as to the carer aspects for Mr Green, because Mrs Green had been receiving carer payments for caring for Mr Green before the so-called separation.  In reply to questions about that, Mr Green said that his daughter now helps him.

26.     I was satisfied from the evidence about the love and shared care both parents bestow on their children that neither Mr nor Mrs Green would leave the house whether they could afford it or not.  Further evidence was that they would not seek divorce because both are practising Catholics.  From the above I was satisfied that the social aspects of the relationship do not signal a particularly happy marriage, but that the indicia for separation pursuant to the Act are not met.  Accordingly, from that point of view, Mr Green is a member of a couple.

Sexual Relationship

27.     As to sexual relationships, Mr Green told me that he and his wife had not had a sexual relationship with each other for some years, and that Mrs Green shares a bedroom with one of the children rather than with him.  I was satisfied that at least part of the lack of sexual relationship is due to Mr Green's age and his health problems rather than as a result of any separation from his wife, and that this has been the situation long before May 2005.  Accordingly, I do not give much weight to the lack of sexual relationship in this case indicating a separation. 

Nature of the People’s Commitment to Each Other

28. The nature of the people's commitment to each other; I was mindful that under that heading which is also from section 4(3) of the Act, consideration has to be given to the length of the relationship, whether the people consider it is likely to continue indefinitely, and whether the people see their relationship as a marriage-like relationship. I was satisfied from the evidence before me that the couple have a commitment to each other and the children, have been married for approximately 15 years, and that neither will leave the house. No divorce is anticipated due to the fact both are practising Catholics.

29.     When I asked Mr Green about his will he said that the beneficiaries under the will were his children.  When I put to him that the Social Security Appeals Tribunal had made a finding based on the evidence before it that the main beneficiary was his wife, Mr Green became quite agitated, admitting however, after some time, that the first beneficiary was his wife, and that any assets went from her to their children.  I was concerned about the veracity of his evidence he first gave. 

30.     In coming to a decision I have had regard to the decision in the marriage of Todd No.2 (1976) 9 ALR 401 in which his Honour, Watson J said:

In my view, separation means more than physical separation.  It involves the destruction of the marital relationship, of the consortium vitae.  Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever, or not to resume the marital relationship and act on that intention, or, alternatively, act as if the marital relationship has been severed.  What comprises the marital relationship for each couple will vary.  Marriage involves many elements, some or all of which may be present in a particular marriage, elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.

31.     I have considered all the evidence as I have pointed to it above, and find that, although the relationship may not be happy, it is ongoing.  There is no intention to sever it, and Mr and Mrs Green are each a member of a couple. 

CONCLUSION

32. In conclusion therefore, I was satisfied that Mr Green is a member of a couple pursuant to the legislation. In coming to that decision I have explored the indicia in section 4(3) of the Act as discussed in the paragraphs above, and all the circumstances surrounding the Green’s relationship. I have also taken into account the principles enunciated in Pavey, Todd and Staunton-Smith (supra) regarding the disintegration of a relationship.  From what I had before me I was satisfied that there had been no disintegration of the relationship. 

33.     I find that Mr Green is a member of a couple and that the separation as claimed has not occurred. 

DECISION

34.     The decision is therefore, that the Tribunal affirms the decision under review. 

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  22 June 2006
Date of Decision  22 June 2006
Counsel for the Applicant         Self Represented 
Counsel for the Respondent     Alan Duri