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

GRYB and Secretary, Department of Social Services (Social services second review) [2022] AATA 2156 (1 July 2022)
AppID:  GRYB and Secretary, Department of Social Services
MatterType:    Social services second review
Division:GENERAL DIVISION
File Number:          2021/1554
Re:GRYB
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:1 July 2022
Place:Sydney

The Tribunal sets aside the reviewable decision and remits the matter to the Respondent for reconsideration with a finding that, pursuant to subsection 24(1) of the Social Security Act 1991 (Cth), the applicant is not to be treated as a member of a couple.
...................................[sgd].....................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
DISABILITY SUPPORT PENSION – long marriage – member of a couple – joint tenants of residential property – domestic violence – emotional abuse – continued co-residence – whether living separately and apart – decision under review set aside and remitted
LEGISLATION
Social Security Act 1991 (Cth), ss 49(2)(a),49(3), 24(1)
CASES
Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143
SD and Secretary, Department of Social Services [2014] AATA 764
U’Brien and Secretary, Department of Social Services [2014] AATA 761
SECONDARY MATERIALS
Social Security Guide. See topic 2.2.5.50
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
1 July 2022
INTRODUCTION

The applicant and her husband (‘Mr CC’) married in 1984 and have three adult children. She has received Disability Support Pension (DSP) since 2008.[1] She also receives Carer’s Payment (CP) for care she provides to her husband, also a long-standing recipient of DSP.
[1] T15/154.
From 2010 to 23 July 2020, the applicant was paid at the single rate, on the footing that she was not a member of a couple.[2] In December 2016, she refused an offer of community housing, a one-bedroom flat, where she could live separately and apart from her husband. On 23 July 2020, Centrelink decided that she was a member of a couple and applied the partnered rate,[3] which is lower (per person) than the rate for singles. On 10 November 2020, an authorised review officer (ARO) affirmed the decision to pay her at the partnered rate.
[2] She went to live with her sister In April 2010, returning in September 2011: T15/173.
[3] T11/149-152.
On 23 July 2020, Mr CC’s pension was also reduced to the partnered rate, a decision confirmed by a different ARO on 15 September 2020.
The applicant and Mr CC applied separately to the Administrative Appeals Tribunal (the Tribunal) for review of the Centrelink decisions of 23 July 2020.
On 25 January 2021, the Social Security and Child Support Division of the Tribunal (AAT1) affirmed that the applicant was legally married and was not living separately and apart from her husband on ‘a permanent or indefinite basis’. The AAT1 found that the applicant was a member of a couple with Mr CC.[4] The AAT1 also found that Mr CC was a member of a couple with the applicant.[5]
[4] T2/3.
[5] T2/3.
As a result of these decisions, the applicant’s DSP pension was reduced from $1050.40 to $711.80 (and allowing for certain deductions).[6] She continued to receive Carer’s Payment at $131.90 per fortnight and, occasionally, Carer’s Supplement. Mr CC’s net pension payment fell from $819.30 to $586.80.
[6] T9/111, 142.
The applicant and Mr CC applied to the General Division of the Tribunal (AAT2) for a second review.[7] The applicant stated in her application that she believed that the AAT1 decision was wrong because they did not live as a married couple, had separate sleeping, cooking and cleaning arrangements, and she provided care to him, showering and dressing him because of his injuries.[8] Mr CC stated in his application that they lived completely separate lives, had separate bank accounts, attended appointments separately and paid their bills separately. He said they did their own shopping and cooking and ate separately, that they had their own rooms within the house, their own cars and bathrooms.[9]
[7] The applicant applied on 16 March 2021; Mr CC applied on 25 February 2021.
[8] T1/2.
[9] T1/2.
CONFIDENTIALITY ISSUE
In September 2021, the Tribunal received a letter from the applicant, referring to police reports relating to her husband, and asking that they be considered. She stated that a lot more would be found out about ‘her husband’s temper’.[10] She also stated that he did not know about her letter, and if he did know ‘would go off the deep end’.
[10] Undated letter received by the Tribunal on 7 September 2021.
Incident reports for the period 2008 to the present period were duly obtained under summons from the NSW Police and received into evidence. An order was made under section 35 of the AAT Act in respect of the applicant’s letter, but later withdrawn after the applicant indicated that her husband was aware that she asked for them to be considered.
For reasons that will become clear later in this decision, I have decided to make a confidentiality order in respect of this decision.

MATERIALS

The Respondent filed an Amended Statement of Facts and Contentions, dated 17 March 2022. The Respondent also filed two sets of documents under section 37 of the AAT Act (the ‘T docs’), a set relating to each of the applicants, each of which is essentially identical.
The Respondent also filed Supplementary T documents, consisting of the following:
·ST1: Documents summonsed from NSW Police relating to the applicant (1-14)
·ST2: Documents summonsed from NSW Police relating to Mr CC (15 – 56)
·ST3: Property title search
·ST4: recent payment rate records for the applicant
·ST5: recent payment rate records for Mr CC
The applicant filed the following documents:
·Letter from KK (the applicant’s daughter), dated 11 Jun 2021
·Medical letter dated 2 Jun 2021
·Two undated handwritten statements of reply by the applicant filed on 7 September 2021 and 7 October 2021

THE HEARING

The application was heard (together with Mr CC’s application) by telephone on 17 May 2022. Mr M Gauci represented the Respondent in both matters. The applicant and Mr CC gave evidence in the absence of one another. Neither was represented by a solicitor.
I note that in December 2017 the applicant and Mr CC provided information to Centrelink about their relationship. The applicant said that she assisted Mr CC to complete the forms because he had difficulty reading and writing.
LEGISLATION
The relevant legislation provides that a person is a member of a couple if the person is legally married to another person and is not, in the Secretary's opinion, living separately and apart from the other person on a permanent or indefinite basis.[11] In forming an opinion about their relationship the Tribunal must have regard to all the circumstances of the relationship including, in particular, the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; any sexual relationship between the people; and the nature of the people’s commitment to each other.[12] Under each of these topics there are specific matters that the Tribunal is required to consider.
[11] Social Security Act 1991 (Cth) sub-s 4(2).
[12] Ibid sub-s 4(3).
The Tribunal may also be required to consider whether there is a special reason why the applicant should not be treated as a member of a couple despite being married and not living separately and apart from Mr CC on a permanent or indefinite basis.[13]
[13] Ibid sub-s 24(1).

PART 1 – IS THE APPLICANT A MEMBER OF A COUPLE - APPLYING THE STATUTORY CRITERA

I turn to consider each of the factors identified in the legislation.
(a) The financial aspects of the relationship
The most important joint asset is their house, a four-bedroom three-bathroom house in a suburb of Newcastle. The applicant and Mr CC are registered as joint tenants. The mortgage account is in both their names.[14] The joint tenancy is apparent from a recent title search on the property. This would ordinarily strongly support a finding that each is a member of a couple with the other, but the applicant was adamant that the house belonged to Mr CC.[15] It was apparent from his evidence that Mr CC also treats the house as his property and did not regard his wife as having any interest or share in it.
[14] Transcript of Proceedings (17 May 2022) 22.
[15] Ibid 24.
Mr CC told the Tribunal that he bought the house in 1993 with compensation money he received from an accident. He said that he put the applicant’s name on the property title as an act of good will and that this caused problems. He said that he put the property on the market twice ‘a few years back’ but never discussed it with the applicant.[16]
[16] Ibid 31.
Mr CC confirmed in oral evidence that when the Applicant received her pension, she gave him a set amount each fortnight. He said that this went ‘towards the amount she has to give me for the month and then I go and pay the bank monthly payments.[17] And that’s the mortgage paid every month.’ He said that she paid him about $600 one fortnight and a little more the next fortnight, from which he took out the water and other different things and he put the rest towards the mortgage. He said that she had to pay towards the mortgage because she was a party to the mortgage.[18]
[17] Ibid.
[18] Ibid 30 - 32.
The applicant did not dispute that she was registered on the title. Mr CC told her that she had to make payments even if she did not live there because her name was on the mortgage. She accepted this on the basis that she had no alternative. She referred to her payments as ‘rent’ or ‘board’. She said she paid $630 one fortnight, $745 the next, and this covered her accommodation (bedroom and bathroom), utilities (electricity and water) and telephone.[19] It is apparent these contributions exceed her adjusted fortnightly pension of $711.80 (from $1050.40).[20]
[19] Ibid 20.
[20] T9/111, 142.
She believed that the property did not belong to her. While her fortnightly payments paid directly to Mr CC covered electricity, water and telephone, it was primarily an accommodation payment. She appeared to accept that she was making substantial regular contribution to the mortgage but did not consider that she had any share of the growing equity in the property. Mr CC said that houses in the area were selling for between $800,000 and a million dollars.[21] The house needed maintenance and would not fetch an optimum price. He said that there was approximately $100,000 owing to the bank.[22]
[21] Transcript of Proceedings (17 May 2022) 30 - 32.
[22] Ibid 32.
The applicant said that she had never consulted a lawyer and was surprised when told that because she was registered as a joint tenant, she would receive the property in the event of Mr CC’s death. She had never done a will and did not know whether Mr CC had done a will. She thought he could leave the house to anybody. She thought it would go to their son.
She said she did not have a joint account with Mr CC. The T-documents contain information relating to the applicant’s savings account, which appears to be a sole account.[23]
[23] T10/128.
The Respondent asked her about an old loan account taken out some ten years ago. The applicant could not remember any specific details, but thought it was something needed for the house.[24]
[24] T13/151.
She has her own car which she pays for herself from accumulated savings. It is a small car, some ten years old, and inexpensive to own and run. He also had his own car and they both agreed that on occasion they could use each other’s car.
The applicant’s claims to operate as an independent person while at the same time contributing to the main expense, being the mortgage payments. Her mischaracterisation of these payments as ‘rent’ or ‘board’ obscures the legal reality. They contribute in roughly equal shares to the mortgage over an asset that is growing in value, and which forms part of the matrimonial pool should they seek a property settlement as part of a divorce. His belief that his original contribution to the purchase insulates him from any claim she may have to a share of the property is simply mistaken.
At a transactional level the applicant and Mr CC operate with a degree of independence. Neither is accountable to the other for expenditures, as long as the applicant makes her fortnightly payments towards the utilities and mortgage.
The applicant and Mr CC share one joint asset, namely, the residential property. Each misunderstands the interest that the other has in it. The fact that they have a joint mortgage, and that the applicant makes regular payment to Mr CC to put towards the mortgage, does not mean that a finding that they are ‘living separately and apart on a permanent or indefinite basis’ is not open. Mr CC’s dominant position in their relationship is evident from their mutual mischaracterisations. These mistaken beliefs favour him, not her. The fact that in law the property is jointly owned and that she has a significant equity does not imply that, for the purposes of determining whether they are a couple, their financial interests should be treated as merged or shared.
(b) The nature of the household
The applicant told the Tribunal that she and Mr CC had their own bedrooms. She said that she had a lock on the door. Mr CC confirmed that he put a lock on her door.[25] Her bedroom has a bathroom attached and she has the freedom to come and go as she pleases. According to her evidence, she was free to use the rest of the house. She occasionally joined Mr CC and her son for a meal. She said that she spent most of her time in her room, where she has a television.
[25] Transcript of Proceedings (17 May 2022) 16.
The couple’s adult son lives in the house.
The applicant said that she shopped separately and did her own cooking. She did not eat meals with Mr CC except on the odd occasion.
She cleaned her own room and Mr CC did the rest of the house. Mr CC also did the backyard.[26] Mr CC agreed that he cleaned the house and that ‘the only thing she does is – any mess she makes, let’s say in her room or the laundry, she makes a mess down there, or in the kitchen she cleans her own mess up’.[27]
[26] Ibid 29.
[27] Ibid.
(c) The social aspects of the relationship
The applicant and Mr CC both agreed that they presented to the world as a married couple.[28] They attended school functions for grandchildren together and had Christmas together. Mr CC said that when they had marital difficulties, he presented his wife with divorce papers, but the children suggested that they continue to live together because the house was big enough for them to have separate lives.[29] The applicant said that only her daughter was aware of the situation because they did not let anybody know their business.[30]
[28] Ibid.
[29] Ibid 29.
[30] Ibid 12.
This factor favours a finding that the applicant is a member of a couple.
(d) Any sexual relationship between the people
The applicant and Mr CC both said that they did not have a sexual relationship. The respondent does not seek to contest this evidence. I accept that the couple are no longer sexually intimate.
This factor favours a finding that the applicant is not a member of a couple.
(e) The nature of the people’s commitment to each other
The applicant said that she provides daily care to Mr CC, for which she receives a Carer’s Payment. She helps him with washing, showering and dressing. She also assisted him with reading and writing, since he did neither.
The applicant described their relationship as follows:
just like a brother and sister relationship sort of thing, you know what I mean. It was nothing - I don’t know how to describe things, that’s why I’m - yes, it was just like I had to do things for him because of his reading and writing, so it was just like an ordinary relationship, not a marriage relationship. It’s the only way I can describe it. Sorry.
Mr CC used similar language. He said it was like ‘best friends or a brother and sister relationship or something’.[31]When asked whether the applicant was kind to him, Mr CC said:
Yes, she’s really helpful, I’ll give her that, the shit I put her through, she’s helpful. It’s like I said, it’s like best friends, or a brother and sister relationship or something. She’s there to be there to help if she can and when I need things she’ll read a letter for me or if I have to go the hospital and fill in paperwork, I’ll say can you come to the hospital and she’ll come up and fill out the paperwork for me. But we just, for some reason, we just couldn’t – well I couldn’t live as husband and wife, I thought we got on better as just friends. So I don’t know what caused that, I don’t know what, I put it down to all the shit I been through and the pain and the injuries, I’ve had both legs broken, they were going to amputate my left leg and I fell over and saved that leg from being amputated. But (indistinct) and my leg is not joined properly, it’s not side by side and the doctor said it was a miracle. So I’ve been through the wars and (indistinct) sometimes why, why me?
[31] Ibid 41.
The applicant said, with reference to divorce:
And the reason I can remember I think now is the reason why we didn’t go ahead with the divorce is because of our three kids.[32]
[32] Ibid 12.

PART 2 – OTHER DECISION-MAKERS
(a) The original decision-maker

The original decision-maker stated:
The decision to assess as a member of a couple is heavily influenced by the fact that parties are still presenting as a member of a couple to family, friends and the wider community, that they still have joint bank accounts, have not sought legal advice to start legally separating and [the applicant] refused an offer for Social Housing in 2016. Neither party have shown that they are taking or have taken, steps to permanently sever the relationship on a permanent and indefinite basis. They have outstanding joint financial commitments and have shown a reluctance to separate these commitments to reflect their separation. [The applicant] has shown through several ways that she is not taking active steps to reside apart on a permanent or indefinite basis and has made the lifestyle choice to continue residing with [Mr CC], when instead, she could have been living separately since 2016, but instead refused the offer of housing from social housing made to her (emphasis added). [33]
[33] T14/162.
In forming an opinion that they were a couple, the decision-maker found that they:
(a)consistently present themselves as a member of a couple, stating that they do not want people to know their business;
(b)support one another financially and emotionally;
(c)Mr CC was providing financial support to [the applicant] in terms of accommodation;
(d)a strong level of trust and commitment towards each other;
(e)have not demonstrated the destruction of the relationship;
(f)had no immediate plans to move apart from one another;
(g)had not sufficiently demonstrated that steps have been taken to permanently sever the relationship;
(h)continue to live in a manner whereby they gain the benefits of those who live as members of a couple.
It is apparent that the applicant’s decision, in 2016, to refuse an offer of community housing, looms large in the original decision. Her refusal was described as a lifestyle choice by the original decision-maker. I propose to consider this aspect in some detail.
In 2016 the applicant was offered a community house (a one-bedroom apartment) in an adjacent suburb but declined the placement. She provided two reasons for her refusal. She did not like the area and was concerned about security. I note that the flat is adjacent to a laneway. She was concerned about drunks and drug users. She said:
I just want to explain why I refused that. I went and had a look at it and it was right next to the park at the - like at the side of the unit where people have drugs and everything else there and alcohol and different things. And because I’m deaf, I’m completely deaf in my left ear and I’ve got half deaf to my right ear I couldn’t hear if anybody was breaking in and I was concerned about it, so that’s why I told them I didn’t want that one. Because I can’t hear and that I wasn’t going to take a chance with the drugs and alcohol, I was scared for my life if I would have taken that one. So that’s the reason why. [34]
[34] Transcript of Proceedings (17 May 2022) 24 – 25.

Her second reason was that she could not afford to pay ‘rent’ in two places. Mr CC told her that even if she moved out, she would need to keep giving him money to pay the mortgage. This made it financially impossible to move and limited her capacity to accept any future offer of community housing. She said as follows:
Respondent: That’s okay. Is it fair to say that you’re not actively pursuing social housing at the moment?
Applicant: No, that’s not correct.
Respondent: How would you describe the situation?
Respondent: Well, I can’t - the reason why is because I can’t pay rent here and then rent somewhere else. I mean I only get what $711, yes, $700 and something and I pay out $745 one fortnight here and then the next one is 630, so I wouldn’t be able to afford to live here and get a house. There’s no way in the world I could do it.
...
I’ve got to pay the mortgage here because it’s on - my name’s on the list, on the contract whatever you call it. [35]
[35] Ibid 20-21.
She appeared to have delegated some critical financial decisions to Mr CC. I note the following exchange:
Respondent: So you have a mortgage to the bank for the property, do you?---
Applicant: Yes, yes. Well, Chris does anyway. He does, I just pay, I don’t know, I just give him money for board and that, I don’t know what to call it (emphasis added).
Respondent: So you’re not aware of whether you’re on the mortgage or you’re a part of the mortgage - - -?...
Applicant: I know I’m on the mortgage but he handles all that (emphasis added). …
Respondent: So how do you pay your contribution?---
Applicant: I pay it to him.
Respondent: And how much do you pay and how often?---
Applicant: I pay $600 every fortnight.
Respondent: And what does that $600 include?---
Applicant: My water, my electricity, my bedroom, my bathroom.
Respondent: So would you agree that it’s a combination of the household expenses?-
Applicant: I don’t know. I don’t know what you’d call it. I don’t know, I can’t answer that one because I don’t know.
Respondent: Okay, so it’s $600 a fortnight for your contribution to the house and the utilities, would you agree with that?---
Applicant: Yes, it’s the mortgage, like it goes to the mortgage (emphasis added).
Respondent: And Mr CC looks after that for you, is that correct?---
Applicant: Yes.
Respondent: And that’s an agreement that you have with him, is that correct?—
Applicant: Well, he just said that’s what I’ve got to pay (emphasis added).
Respondent: And you agreed with that, didn’t you?---
Applicant: I have to don’t I to live here. I’ve got nowhere else to go (emphasis added). ...[36]
[36] Ibid 16 – 17.
In my view, the evidence presented at the hearing does not support all the original decision-makers findings. There is no evidence that Mr CC supports the applicant financially and emotionally. If anything, the evidence points the other way. Nor do I consider it correct to say that he provides financial support to the applicant in terms of accommodation, or that they have a strong level of trust and commitment towards each other. My assessment is that the relationship is fragile and fractious, and based on pragmatism rather than trust and commitment.
However, the original decision-maker was, in my respectful view, correct to find that the applicant consistently presents as a member of a couple; has not demonstrated the destruction of the relationship; has no immediate plans to separate; or permanently severe the relationship; and continues to live in a manner attracting the financial benefits of a partnership. They live in the same house, albeit it in separate spaces, and present to the world as a couple. She also receives a significant carer’s payment in respect of the case she provides for Mr CC.
(b) The ARO’s approach
In reviewing the original decision, the ARO stated that there are certainly elements which might indicate that the applicant and Mr CC are separated, however there were factors which indicated a level of commitment.[37] There was a high degree of interdependence and a dearth of evidence that the relationship had completely broken down.
[37] T14/156.
I share the view ARO’s view that there some elements of their relationship suggesting that they are not a couple, but on balance, I think the evidence points the other way. I have also reviewed the findings made by AAT1 and agree with them.
Based on the materials before the Tribunal, the oral evidence given by the applicant and Mr CC, I am satisfied that the applicant is married to Mr CC and a member of a couple, applying the objective criteria contained in subsection 4(3) the Social Security Act 1991 (Cth) (‘Social Security Act’).
I note in passing that in the related decision I come to the same conclusion with respect to Mr CC. He is a member of a couple with the applicant. The findings are reciprocal.[38]
[38] It is hard to imagine a case where a finding that P is a member of a couple with Q did not also imply that Q was a member of a couple with P.
PART 3 – SECTION 24(1) IS THERE A SPECIAL REASON TO TREAT THE APPLICANT DIFFERENTLY?
Section 24(1) of the Social Security Act provides as follows, with emphasis added:
(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.
Is there a ‘special reason’ why, despite the findings made above, the applicant should not be treated as a member of a couple in her particular case? The AAT1 did not consider this issue.
I have reviewed the summon material provided by the New South Wales Police relating to the period 1 January 2008 to the present. The evidence before the Tribunal is that police attended the property on many occasions. Between 2008 and 2013 there are four recorded domestic incidents. Mr CC said they were always there.[39] In all there are 54 recorded incidents involving Mr CC but most of these involve his interactions with neighbours.
[39] Transcript of Proceedings (17 May 2022) 39.
The applicant said that the police had been called to the house due to verbal interactions and ‘his temper’.[40] On one occasion Mr CC was arrested for assaulting the police, and he is reported to have assaulted the applicant in 2008. The report states:
Although there have been no previous reports of domestic violence between the PINOP and the defendant it is clear to Police the PINOP is frightened of the defendant. The PINOP told Police that the defendant has told her in the past if she ever left him he would have her raped … The defendant is considerably bigger than the PINOP and it was apparent to Police that he uses fear tactics to prevent her from making a complaint to Police.[41]
[40] Undated letter received 7 September 2021.
[41] ST1/13-14.
Mr CC admitted that she he was probably scared of him ‘because of the tempers I have’, although he said that he never hit her.[42] He told the Tribunal that the police were always at the property but denied any wrongdoing. He said that a malicious neighbour was responsible for calling the police on these several occasions.
[42] Transcript of Proceedings (17 May 2022) 36.
He appears to have had no time for the police and on one occasion assaulted a female officer who attended the property.[43] On that occasion the police had returned to the property after an earlier call-out. They were investigating a possible breach of an apprehended domestic violence order (ADVO) by Mr CC. The Police Report is as follows:
The accused was then informed that he was under arrest for breaching his ADVO, by being intoxicated and in contact with the PINOP. The accused then started to argue with Police stating that they did not have the right. Police then grabbed the accused by the shoulder to which the accused stated ‘Here we go then. Have a go.’ The accused then pushed away from police. Other Police have then attempted to restrain the accused to which he resisted. During the struggle the accused has punched Senior Constable XXX twice to the right side of her face and then pushed her onto the glass side table. Due to the force of the push Senior Constable XXX fell to the ground hitting her left shoulder onto the leg of the side table. Police continued to struggle with the accused eventually getting him to the ground. As a result of the assault Senior Constable XXX received soreness and swelling to the right side of her jaw and neck area. Due to the struggle the accused has received a carpet graze to his forehead. He was then handcuffed and taken to the Belmont Police Station. He was then introduced to the Custody Manager. The accused was then charged with the matters now before the Court. Police spoke to the PINOP who stated that she was asleep and did not know why Police were called. She did state that they had and argument earlier that night about the mortgage payments and the fact that the PINOP had not aid enough rent this week.
[43] ST2/31.
His explanation of this incident is neither coherent nor credible.
Anyhow, they told me to leave the room, I said no, I’m just standing here to see what’s going on and because I refused to leave the room, they placed me under arrest. And what they’d done is they tried to wrestle me to the ground and the two males, the sergeant, he stood back, the other guy and the two females grabbed my arms and all that, was trying to get me on the ground and get handcuffs on me. And one of the female officers fell on the ground, tripped over the cable, and she got up, you know, long story short, she accused me of punching her in the face twice and I said I want statements and pictures taken to the police when they go to court, because we took this to court, anyhow, they turn up, couldn’t get a statement off her till the day of the court, we went into court and I said to my solicitor, this is a joke, she’s handed the paperwork in on the day of court, no pictures, no nothing, and she reckons I punched her in the face three times. I said I had my rings on, there was no proof, it was just a bullshit cover up, I appealed the decision and got all the charges dropped. So that was that instance. And there was no – there was no – yes. [44]
[44] Transcript of Proceedings (17 May 2022) 37-38.
SOCIAL SECURITY GUIDE
The Guide to Social Security Law (the Guide) provides some assistance on the application of the discretion contained in subsection 24(1). The Tribunal is expected to follow and apply government policy unless there are cogent reasons in a particular case for not doing so: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
The Guide states (at 2.2.5.50):
Section 24 discretion exists to deal with unfair, inequitable and/or unjust anomalies.
Section 24 is intended to be the option of last resort, and should only be applied when all other reasonable means of support have been explored and exhausted.
...
It is not possible to predict all the situations where section 24 should be applied as the circumstances of each particular situation need to be considered on a case-by-case basis.
...
The discretion to treat a person as NOT being a member of a couple should be exercised ONLY where a full consideration of all the circumstances relevant to the individual's case would make it unjust or unreasonable not to do so (emphasis added).
It is appropriate that the decision maker strike a balance between the individual circumstances of the person and the circumstances of the couple.
...
The couple's circumstances should be compared to a couple in similar circumstances but for whom the special circumstances to apply section 24 do not exist. There must be some degree to which circumstances are outside the couple's or individual's control and cannot be changed.
...
Three questions that need to be considered as part of the assessment while looking at the full circumstances of the case are:
Is there a special reason to be considered in this couple's circumstances?
Is there a lack of being able to pool resources for the couple as a result of the circumstances?
Is there financial difficulty as a result of the couple's circumstances?
In terms of financial difficulties, I do not accept the analysis provided by the Respondent that the applicant has a substantial monthly surplus. The calculation appears to considerably understate her contributions to the mortgage and utility payments.[45] It is however true that, while there is some financial pressure, caused by the reduction of their pensions from the single to the partnered rate, they have a valuable asset in the house that could be sold.
[45] RSFIC [64].

CONSIDERATION

The applicant and Mr CC have what can only be described as an unhappy marriage. Sadly, many unions are unhappy. Some of those might even be stable, a couple locked in perpetuity to a state of misery. In SD and Secretary, Department of Social Services [2014] AATA 764 at [71] the Tribunal noted that the fact that the applicant remained in an unhappy marriage for cultural or financial reasons did not raise matters that are unusual or so different as to take the case out of the ordinary course, noting that there are likely to be many cases where an unhappy married couple decide to remain together for the sake of the children, financial convenience or cultural reasons. In so doing, they gain the financial benefit of pooling their resources.
Some of the factors relevant to whether the applicant is properly regarded as a member of a couple are also relevant to whether she is subject to ongoing abuse. It is undoubtedly significant that she chooses to remain ‘with’ her husband, despite being offered a community house in a neighbouring suburb. She has not taken any steps towards divorce, although the issue was raised by Mr CC. She continues to provide care to Mr CC, helping him with washing, toileting and dressing.
I accept that the applicant and Mr CC receive a significant benefit from living in shared accommodation and derive some benefits from living together. The justification for the lower rate is that persons who pool their resources and share common facilities derive economies of scale not available to persons who are truly independent: see Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143, at [38], per Creyke SM. However, in the Tribunal’s opinion, a finding of serious domestic abuse may provide a special reason in a particular case, even though some savings may arise from the parties living together.
Why does the applicant not leave her husband, and insist on a fair property settlement? A person who has a realistic alternative and chooses to stay may well be regarded as bonded to the relationship. A refusal to accept alternative accommodation may support an inference that the person who chooses to stay is a member of a couple. The inference is less readily drawn where there is evidence of domestic abuse.
When the applicant was asked why she did not consider ending the marriage and doing a property settlement, she said ‘Because it’s his house, it’s not mine …’ When asked to amplify her answer, she said, with emphasis added:
Senior Member: I don’t understand why you say that … your name is registered on the title, is it not?---
Applicant: It is, yes.
Senior Member: Why do you say it’s his house?---
Applicant: Well he brought it with all his money from his accident. I’m – I don’t know how to put – I don’t know how to say this, when he done it, when he brought it, he put my name on the contract as a good will thing. Now I never asked him to do that, he done that by himself, thinking that it was, you know, that we were going to last forever and things like that. But that’s the reason and so, I don’t class myself as – I don’t own the house, he owns the house, and he told me that years ago when he done it, that it was only a good will. So you know, and like I said, I can’t afford – he told me that I can’t leave because my name is on the mortgage and I have to pay it by law, I have to still pay my part of the rent, or the mortgage. So I wouldn’t be able to afford to pay the mortgage as well as the house commission place. I know it sounds suss - - -[46]
[46] Transcript of Proceedings (17 May 2022) 18.
She was asked whether she had spoken to a lawyer about her situation and she replied as follows:
Applicant: No, I haven’t.
Senior Member: And if Mr CC passed away, who gets the house?---
Applicant: As far as I know, my son does.
Senior Member: But I understand that the house is registered in your joint names, as joint tenants, do you understand that?---
Applicant: Yes.
…
Senior Member: If the house is registered in that way, do you understand that that means that if he passed away, that you would get the house?---
Applicant: No. I thought he could leave it to anybody - - -
…
Senior Member: Have you done a will …?
Applicant: No, I haven’t. I’m sorry, no. I’ve been thinking of it.
Senior Member: Do you know whether he’s done a will?---
Applicant: I couldn’t tell you, honestly. [47]
[47] Ibid 24 – 25.
She was asked whether she had taken any steps to have her name removed from the mortgage or to sell the property:
Senior Member: Have you taken any steps to have your name removed from the mortgage?
Applicant: No. I don’t know what you have to do for that anyway but, no, I haven’t.
…
Senior Member: Have you taken any steps to look into selling the property that you’re currently in …?
Applicant: I haven’t but as far as I know I think Chris has.
Senior Member: What are you aware of? What steps are you aware of that have been taken to sell the property?
Applicant: Well, I don’t know. I think I heard him one day talking to his son but see like I said I don’t have much to do with what goes on in the house or that because it’s - like I only just pay the rent because my name’s on the mortgage, you know (emphasis added).[48]
[48] Ibid 20-21.
Emotional abuse may be just as debilitating and corrosive as physical violence. A person experiencing ongoing emotional abusive may feel powerless to end it. Where only one party sets the rules, the other may feel powerless. There are traces of this dynamic in their relationship. He determines how much she pays and says that she must continue to pay the mortgage even if she leaves, because her name is on the mortgage.
The evidence in support of domestic violence is to be found in the Police Reports together with the answers given by Mr CC under cross-examination. In her oral evidence, the applicant did not say that she was subject to ongoing coercion or that she lived in fear, or that she feared him. She was not explicit. Nor was she asked about the information contained in the Police reports. In her Separated under one Roof (SUOR) form she stated ‘We have nothing in common. We fight all the time. He is very abouves (sic).[49] Try and stay away from him.[50]
[49] The word ‘abusive’ was probably intended.
[50] T7/90.
The Respondent argues that the domestic abuse happened a long time ago and that she turned down an offer of community housing. In other words, she chose not to live apart from him.
The Tribunal does not have such a sanguine view, for a few reasons. First, I consider that Mr CC is quite capable of violence and has an unrestrained temperament. His assault on a female police officer is especially troubling. The threat to the applicant that she would be raped if she ever left him is not only sinister but appalling. Such a threat has a long shelf life. The impact of his loss of temper is serious and cannot be underestimated. He has been the subject of various personal violence orders arising from neighbourhood disputes.[51]
[51] ST2/23 – 54.
Secondly, Mr CC’s treatment of his wife shows a degree of economic coercion, alongside the physical intimidation aspect. The applicant said that she is unable to leave the property. She said she could not afford to pay rent and believes that she would have to pay the mortgage even if she left the property. Mr CC has told her that it is so. This is the very essence of economic coercion. The effect is that the applicant feels powerless to change things. She sees no choice but to remain in her unhappy marriage. Her cage may be gilded (compared to the community housing alternatives) but is no less of a cage for that.

It is irrelevant that the applicant has come to believe that she has no interest in the property, and no interest to protect or defend. Without intending any disrespect, I note that the applicant appears to be poorly educated and naive in property matters.
Thirdly, the applicant has her own serious health concerns. She said she had had ‘mini- strokes and blood clots.[52] The applicant said that she is now attending a psychologist, although the Tribunal was not provided with any psychological or psychiatric assessment.[53]
[52] Transcript of Proceedings (17 May 2022) 11.
[53] Transcript of Proceedings (17 May 2022) 25.
I note that in U’Brien and Secretary, Department of Social Services [2014] AATA 761, the applicant’s partner was abusive and controlling towards the applicant. The Tribunal was inclined to exercise the discretion in favour of the applicant but did not do so because the applicant made a false representation to Centrelink about her status. In the present case the Respondent does not contend that either the applicant or Mr CC provided any misleading information to the Department.
The question is whether there is something ‘unusual or different’ about the applicant’s relationship with Mr CC that takes it out ‘of the ordinary course’, recognising that the reference to ‘special’ does not require the case to be ‘extremely unusual, uncommon or exceptional’.[54] I also note the Guide, which provides that the to treat a person as not being a member of a couple should be exercised only where a full consideration of all the circumstances relevant to the individual's case would make it unjust or unreasonable not to do so.
[54] See Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531, at [18] per French J (as he then was).

FINDINGS

Neither the applicant nor Mr CC were ideal witnesses. The applicant was vague and hesitant. Mr CC was hostile and recalcitrant.
On the material contained within the Police reports, together with the oral evidence of Mr CC, I find that the applicant has been subject to serious domestic abuse, threatening and controlling behaviour. This has gone on for many years. I also find that, at the time of the reviewable decision, she remained subject to ongoing emotional abuse, coercion and control. This critical factor was not considered by the original decision-maker, the ARO, or the AAT1. The possibility of domestic abuse was not raised until the matter was before the AAT2.
The applicant displays a degree of passivity and submissiveness to Mr CC as a result of his past behaviour, his ongoing financial control, and his temper. I am satisfied that there is a link between the applicant’s passivity and his abusive behaviour. I am satisfied that Mr CC continues to exercise an unacceptable degree of coercive control. I am satisfied that, therefore, the applicant’s freedom to terminate the relationship is significantly diminished. Mr CC’s oppressive conduct coupled with her passivity is a persistent feature of their relationship.
These findings are based on the several incident reports provided by NSW Police, and the oral evidence provided by the applicant and Mr CC.
I find that the applicant is married to Mr CC and that, based on the objective criteria within subsection 4(3) of the Social Security Act, they are not living separately and apart on a continuing or indefinite basis.
I find by reference to section 24(2) of the Act that there is a special reason why the applicant should not be treated as a member of a couple, despite being married and not living separately and apart from her husband Mr CC on a permanent or indefinite basis. Taking account of all the circumstances, I find that it would be unjust or unreasonable to treat the applicant as a member of a couple with Mr CC.
I have also decided on my own initiative to issue a confidentiality order.
In the separate decision relating to Mr CC, I have decided that there is no special reason that prevents him from being regarded as a member of a couple.

CONCLUSION

The Tribunal sets aside the reviewable decision and remits the matter to the respondent for reconsideration with a finding that there is a special reason why the applicant should not be treated as a member of a couple with Mr CC.

I certify that the preceding 89 (eight-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

....................................[sgd]....................................
Associate
Dated: 1 July 2022

Date of hearing: 17 May 2022

Applicant: Self-Represented

Solicitors for the Respondent: Mr M. Gauci, Hunt & Hunt Lawyers

[2022] AATA 2156

1 July 2022

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Date of hearing:	17 May 2022
Applicant:	Self-Represented
Solicitors for the Respondent:	Mr M. Gauci, Hunt & Hunt Lawyers