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

[2021] AATA 1989

GYYG and Secretary, Department of Social Services (Social services second review) [2021] AATA 1989 (29 June 2021)

Division:GENERAL DIVISION

File Number:          2020/4362

Re:GYYG  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member C. J. Furnell 

Date:29 June 2021  

Place:Melbourne

The decision the subject of review is set aside and, in substitution for that decision, the Tribunal decides that the rate at which applicant’s DSP is to be paid is to be calculated on the basis that she was not on 16 October 2019, and is not now, a member of a couple with Mr A.

..............................[SGD]..........................................

Senior Member C. J. Furnell 

Catchwords

SOCIAL SECURITY – disability support pension – rate of payment – whether applicant a member of a couple – shared parentage of a child – co-habitation – not a de facto relationship – decision set aside and substituted

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Beverley Sybil Anderson and Secretary, Department of Social Security, Re [1993] AATA 172
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Dietman and Repatriation Commission (Veterans' entitlements) [2019] AATA 4428
Dimov and Secretary, Department of Family and Community Services [2005] AATA 912
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Lyons and Secretary, Department of Social Services (Social services second review) [2018] AATA 3644
Melvin v Secretary, Department of Social Security [2016] FCA 375
Micallef and Secretary, Department of Family and Community Services, Re [2004] AATA 485
Milovanovic and Secretary, Department of Employment and Workplace Relations, Re [2006] AATA 930
Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5
Pavey, in the Marriage of (1976) 25 FLR 450
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Secretary, Department of Education, Employment and Workplace Relations and Hitchcock and Anor, Re [2008] AATA 677
Secretary, Department of Employment and Workplace Relations and Gilson, Re [2007] AATA 1361
Sperring and Secretary, Department of Employment and Workplace Relations, Re [2007] AATA 1050
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Szoxp v Minister for Immigration and Border Protection [2015] FCAFC 69
Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2010] AATA 284
Utczas and Secretary, Department of Social Security [1989] AATA 756

Vo and Secretary, Department of Social Services (Social services second review) [2019] AATA 2341

REASONS FOR DECISION

Senior Member C. J. Furnell 

29 June 2021

1. The applicant has applied to the Tribunal[1] for review of a decision made by the Tribunal’s Social Services and Child Support Division (SSCSD) on 3 July 2020[2] (AAT first review decision).

   [1] T1.

   [2] T2.

2. In conducting the requested review, the issues now to be addressed by the Tribunal flow from the task it is undertaking. That task involves it doing over again that which was done in the making of the decision the subject of review.[3]

   [3] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51].

3. The decision the subject of review is the decision which the SSCSD decided to affirm in the AAT first review decision.[4] The decision so affirmed by the SSCSD is a decision made on 16 October 2019 to the effect that the rate at which applicant’s disability support pension (DSP) was to be paid was to be worked out on the basis that she was then a member of a couple with another person, who will be referred to in these reasons as Mr A.[5] That decision was then affirmed by an authorised review officer of the respondent on 24 April 2020.[6]

   [4] When a decision is affirmed by the SSCSD, what the Tribunal reviews is the decision as affirmed: Social Security (Administration) Act 1999, s 179.

   [5] T6, 142.

   [6] When an initial decision is affirmed by an authorised review officer, what the SSCSD reviews is the decision as affirmed: Social Security (Administration) Act 1999, s 142.

4. Pension Rate Calculator A, found at the end of s 1064 of the Social Security Act 1991 (the Act), is used to work out the rate at which the applicant’s DSP is paid.[7] That calculator requires that regard be had to the income and assets of a person’s partner[8] (noting that, under the Act, a person is partnered if the person is a member of a couple).[9]

   [7] Act, s 117.

   [8] Act, ss 1064-B1, 1064-E2 and 1064-G2.

   [9] Act, s 4(11).

5. Accordingly, the essential question in issue in this review is whether, for the purpose of calculating her entitlement to the DSP, the applicant has been a member of a couple since 16 October 2019.

6. I have decided that the applicant has not been for the reasons which follow.

   WHEN IS A PERSON A MEMBER OF A COUPLE?

7. Given that the applicant and Mr A are not legally married, she and he will be considered to be a couple if she has a relationship with him which, in the opinion of the Tribunal (standing in the shoes of the departmental secretary), is a de facto relationship[10] unless they are living separately and apart from each other on a permanent or indefinite basis[11] or the Tribunal is satisfied that she ought not be treated as a member of a couple for a special reason in the particular case.[12] 

   [10] Act, s 4(2)(b) – I note that both the applicant and Mr A are over the age of consent and are not in what is, for the purposes of the Act, a prohibited relationship.

   [11] Act, s 4(3A).

   [12] Act, ss 4(6) and 24(1).

8. I am not satisfied that the applicant was on 16 October 2019, or is now, in a de facto relationship with Mr A.

9. In arriving at that state of non-satisfaction, I had (as I am required to have) regard to certain specific indicators or considerations. They are:

   (a)the financial aspects of their relationship;

   (b)the nature of their household;

   (c)the social aspects of their relationship;

   (d)the issue of any sexual relationship; and

   (e)the nature of their commitment to each other.[13]

   [13] Act, s 4(3).

10. I address each of these specific considerations later. Before doing so, however, I should mention some propositions of general application.

11. First, the specific considerations to which I am required to have regard are not exhaustive. “[A]ll the circumstances of the relationship”[14] must be considered, having regard to the persons’ concerned “interpersonal relationship as a whole”.[15]

    [14] Act, s 4(3).

    [15] Melvin v Secretary, Department of Social Security [2016] FCA 375 at [19] citing Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at [46].

12. Second, persons are unlikely to be considered to be living separately and apart from each other on a permanent or indefinite basis if they maintain a marriage-like relationship.[16] I note, however, that the application of this proposition in any particular context can be difficult given that the concept of a marriage-like relationship is nebulous; what it is composed of varies from couple to couple.[17]

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

    [17] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 175. See Re Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 at [70] where Senior Member Isenberg acknowledged the difficulty in ascertaining whether a particular relationship was marriage-like.

13. Third, two persons are more likely to be a couple if the relationship they share differs from that which they have with anyone else.[18]

    [18] Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92 at [30]. But see also Dietman and Repatriation Commission (Veterans' entitlements) [2019] AATA 4428, where what would appear to be a unique relationship between persons living under one roof was nevertheless not such as to constitute them being a couple.

14. Fourth, the nature of a person’s relationship with another is not determined solely by physical aspects of the relationship. There is both a physical and mental element to the living separately and apart concept, with the mental element being independent of the physical one.[19] Hence, two people may comprise a couple despite a lack of ongoing physical proximity.[20] Even the maintenance of separate physical residences does not preclude a finding that the persons concerned are a couple.[21]

    [19] Szoxp v Minister for Immigration and Border Protection [2015] FCAFC 69 at [55-56]; Melvin v Secretary, Department of Social Security [2016] FCA 375 at [83].

    [20] Utczas and Secretary, Department of Social Security [1989] AATA 756 at [11]; Dimov and Secretary, Department of Family and Community Services [2005] AATA 912 at [31]; Szoxp v Minister For Immigration and Border Protection [2015] FCAFC 69 at [55-57].

    [21] Dimov and Secretary, Department of Family and Community Services [2005] AATA 912 at [31]; Szoxp v Minister for Immigration and Border Protection [2015] FCAFC 69 at [55-57].

15. I turn now to the specific considerations to which I am required to have regard.

    CONSIDERATION

    Financial aspects

16. In looking to the financial aspects of the relationship between the applicant and Mr A, consideration needs to be given to:

    (a)any joint ownership of real estate or other major assets and any joint liabilities;

    (b)any significant pooling of financial resources, especially in relation to major financial commitments;  

    (c)any legal obligations owed by one of them in respect of the other of them; and  

    (d)the basis of any sharing of day‑to‑day household expenses.[22]

    [22] Act, s 4(3)(a)(i)-(iv).

17. The applicant and Mr A do not jointly own property or owe joint liabilities and do not owe legal obligations to each other, albeit that legal obligations might arise by reason of their shared parentage of the applicant’s older child (such as in relation to child support). They have not pooled resources in relation to major financial commitments.

18. As for day-to-day expenses, the applicant is solely responsible for the costs associated with her car, for expenses associated with the younger of her two sons (such as expenses related to day care) and for the costs of her clothing and entertainment. She is also solely responsible for the rent on the residence she shares with Mr A. That the applicant accepts sole responsibility for the rent on that residence might be taken to suggest that there is something special or unique about the relationship the applicant has with Mr A that goes beyond simply friendship. On the facts before me, however, I do not believe this to be the case. The landlord of the applicant’s rented property is her grandfather and the cost of the rental is, apparently, at less than the market rate. According to the applicant, her grandfather insisted that it be her rental accommodation alone, in that she paid the rent with no contributions from others. The apparent objectives were that the applicant not place herself in a position where she was relying on others to meet the rent (the grandfather apparently being distrustful of the reliability of others) and that no one else gain an entitlement to the property through the payment of rent. These objectives were reflected not only in the arrangement the applicant has with Mr A but also in arrangements which the applicant has had with others whom she has, from time to time, let share her accommodation.[23]

    [23] The applicant’s evidence was that she has let a number of people share her accommodation, albeit not to the same extent as Mr A.

19. While the applicant has sole responsibility for some day-to-day expenses, responsibility for most of them is shared. In particular, the applicant and Mr A share the costs of food for themselves and their son, household products, electricity,[24] an internet service,[25] as well as sharing their son’s school fees and medical expenses. The fact of this sharing was confirmed by the applicant and Mr A in oral evidence and reflected in copies of bank account statements included in the material before me evidencing a number of fund transfers from Mr A to the applicant, involving a wide variety of amounts.[26]

    [24] The electricity account was in the applicant’s name (T28) but her oral evidence was to the effect that it is now in Mr A’s name due to her bankruptcy.

    [25] The internet service provider’s account was in the name of Mr A (T31), but the applicant’s oral evidence was to the effect that it is now in her name.

    [26] See T76-81. See also T82-87 being a credit union account statement disclosing 14 transfers by Mr A to the applicant in the month of May 2019.

20. The applicant’s share of these household expenses is, generally, greater than that of Mr A. The applicant accepts responsibility for her own costs and those of her younger son as well as half the costs of her older son, while Mr A accepts responsibility for his own costs and half those of the applicant’s older son.

21. Contrary to the respondent’s submission, I do not see these arrangements as reflecting a pooling of resources. Rather than a putting together of resources into a common fund, a combining of resources for a common benefit,[27] what we have here is simply the making of “separate contributions to different elements of household expenditure.”[28] I do not see this as indicative of a de facto relationship.

    [27] Vo and Secretary, Department of Social Services (Social services second review) [2019] AATA 2341 at [29].

    [28] Pelka v Secretary, Dept of Family and Community Services (2006) 151 FCR 546 at [52].

22. Similarly, I do not see the arrangement that Mr A has with the applicant to effect repayments in respect of expenses the applicant met while Mr A was not in receipt of an income during several months in 2019 as being indicative of a de facto relationship.

23. During that period, when Mr A was unemployed and was not receiving any social security benefits, the applicant apparently met nearly all household expenses (albeit that Mr A was then being assisted financially to some extent by his uncle and father). Rather than accepting his non-contribution (or less than full contribution) to expenses in that period as simply being part of the highs and lows of a marital or de-facto relationship, Mr A has repaid the applicant for (or at least made payments to her in or toward repayment of) funds effectively advanced by the applicant and applied to meet Mr A’s share of household costs.

24. Lastly, I note that the applicant’s evidence was to the effect that, on occasion, she has paid Mr A to mind her younger son, especially during the height of the pandemic in 2020 and when she acts as driver for her mother (which might occur on one to four days a fortnight). Payment being made by a person to another to look after the child of the person is not reflective of the person and that other being in a marital type relationship. 

25. Given these matters, I find that, overall, the financial aspects of the applicant’s and Mr A’s relationship are not such as to warrant, or be consistent with, the formation of an opinion that they were or are in a de facto relationship. While each of the applicant and Mr A contribute funds to meet most household expenses,[29] the fact of their contribution in this case does no more than reflect a common practice of those who share accommodation to also share responsibility for household costs. Moreover, other financial arrangements between them (such as that concerning the payment of a child-minding fee to Mr A) are not reflective of them being in a de facto relationship.

    [29] Lyons and Secretary, Department of Social Services (Social services second review) [2018] AATA 3644 at [74].

    Household

26. As for the nature of the Applicant’s household, consideration is required to be given to:

    (a)any joint responsibility for providing care or support of children;

    (b)the living arrangements of the people; and

    (c)the basis on which responsibility for housework is distributed.[30]

    [30] Act, s 4(3)(b)(i)-(iii).

27. Both the applicant and Mr A appear to accept a joint responsibility for raising their child, the applicant’s older son. The evidence of both of them is to the effect that Mr A shares accommodation with the applicant in order for him to be involved in the raising of their child.

28. Consistent with their joint concern that Mr A be in a position to help raise their son, the applicant and Mr A have spent most of the last decade living in the same accommodation and, on occasion, have moved house together. Of the five addresses at which the applicant has resided since December 2011,[31] Mr A has spent time residing in four of them.[32] Almost all of that time occurred after their son was born in August 2012.[33]

    [31] T91.

    [32] T104.

    [33] The applicant’s mother’s evidence was to the effect that Mr A may have spent around nine days to a fortnight sharing accommodation with the applicant before their son’s birth, evidence substantially corroborated by both the applicant and Mr A.

29. This concern that Mr A have a hand in raising his and the applicant’s son might, of itself, be considered suggestive of a marriage-like or de-facto relationship.[34]  In In the Marriage of Pavey,[35] it was said that "[t]he nurture and support of the children of the marriage [w]as a constituent element of the marital relationship." In Milovanovic,[36] Senior Member Professor Shearer stated that “[w]hile one would not want to lay down a rule that joint care of a child automatically disqualifies a person from being regarded as anything other than a couple for the purposes of the Act, there was evidence in the present case that there was a significant degree of dependence by Mrs Milovanovic on the continued existence of the relationship, and especially its financial aspects, in caring for their son.”

    [34] See eg. Beverley Sybil Anderson and Secretary, Department of Social Security, Re [1993] AATA 172. In that case persons were considered to comprise a couple where they set aside their interpersonal difficulties in order to maintain “some kind of family relationship” (at [55]) “in the interests of the children” (at [59]).

    [35] (1976) 25 FLR 450 at 455 cited and adopted in Micallef and Secretary, Department of Family and Community Services, Re [2004] AATA 485 at [27].

    [36] Milovanovic and Secretary, Department of Employment and Workplace Relations, Re [2006] AATA 930 at [32].

30. I recognise, however, that a relationship between parents founded on a desire to care for their child might simply be characterised as one reflective of a commitment to the child as opposed to a commitment to each other[37] and, hence, not be suggestive of a de facto relationship.

    [37] Secretary, Department of Education, Employment and Workplace Relations and Hitchcock and Anor, Re [2008] AATA 677; Secretary, Department of Employment and Workplace Relations and Gilson, Re [2007] AATA 1361; Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2010] AATA 284.

31. Here, I find that the relationship the applicant has with Mr A goes beyond one solely concerned with their child. In particular, the applicant accepted that Mr A co-habits with her not only to help raise their child but also to help protect her from the child’s violent outbursts.[38] The applicant stated that, in this respect, she and Mr A each provide a level of mutual protection. This is indicative of a commitment not only to their child but also to each other. I do not see, however, the commitment the applicant and Mr A have to each other over and above their commitment to their child as being indicative of them being in a de facto relationship. Rather, while potentially consistent with them being in such a relationship, it is also consistent with them being in a relationship of the type which the applicant contends that she has with Mr A, one based merely on friendship, a contention corroborated at the hearing of this proceeding by Mr A, the applicant’s mother and a friend of the applicant.    

    [38] Noting that the child apparently suffers from a number of conditions including autism spectrum disorder, ADHD, ODD (oppositional defiance disorder) and PTSD.

1. As for living arrangements and the basis on which responsibility for housework is distributed, again, while potentially consistent with the applicant and Mr A being in a de facto relationship, the facts pertaining to these considerations are also consistent with them simply being friends that share accommodation and who, in addition, care for their child.

2. In terms of living arrangements, since April 2018 the applicant and Mr A have co-habited in a house with one bathroom, one kitchen, one living area and multiple bedrooms.  They generally or, at least, often, eat together with their son and, occasionally, watch television together, again with their son – albeit, more usually, their son spends his leisure time at night in his own room, as does Mr A.

3. Responsibility for housework is shared. The applicant cleans the toilet and does most of the cooking and shopping. Mr A cleans up after meals and does the mowing. They each have a role in preparation of school lunches and in vacuuming. The applicant does the laundry for herself and children, while Mr A does his own laundry.

4. Given these matters, I find that, overall, the household aspects of the applicant’s and Mr A’s relationship are not such as to warrant the formation of an opinion that they were or are in a de facto relationship.

   Social aspects of their relationship

5. In looking to the social aspects of the applicant’s and Mr A’s relationship, consideration is required to be given to:

   (a)whether they hold themselves out as married to, or in a de facto relationship with, each other;

   (b)the assessment of their friends and regular associates about the nature of their relationship; and

   (c)the basis on which they make plans for, or engage in, joint social activities.[39]

   [39] Act, s 4(3)(c)(i)-(iii).

6. As to the way the relationship between the applicant and Mr A is held out and the assessment of third parties, there is no substantive evidence of them holding themselves out as anything more than friends who share parentage of a child. Moreover, evidence before the Tribunal (albeit that it is limited), consisting of statements and oral evidence of the applicant’s mother and a friend of the applicant, is to the effect that third parties would not be led to believe that there is anything more to their relationship. According to the applicant, her friends would see Mr A as simply her son’s father.

7. Consistent with this, there is no evidence before the Tribunal suggestive of the applicant and Mr A jointly engaging in social activities other than those that involve their son, such as school events or the occasional school holiday outing.

8. While the applicant might not have an extensive social life (noting that she describes herself as “a homebody”), the social activities she does engage in that do not involve her son are generally engaged in independently of Mr A. For example, events involving the applicant’s extended family are attended separately from Mr A[40] and the applicant does not attend Mr A’s family events.  

   [40] Noting what was suggested to be somewhat of an exception when Mr A attended the funeral of the applicant’s grandmother in 2017.

9. More significantly, and inconsistently with what I consider to be the exclusivity generally inherent in a subsisting marital or de facto relationship, the applicant’s evidence before the Tribunal (corroborated by that of Mr A and a friend of the applicant) is that, while co-habiting with Mr A, she had a sexual relationship with another person. A third party was said by the applicant to have resided with her “on and off” after April 2018 (albeit before the decision the subject of review was made in October 2019). Moreover, the applicant’s evidence was that she is currently engaged in another such relationship, a fact confirmed by Mr A and one which appeared to trouble him not at all.

10. That the applicant had, and has, third-party romantic relationships while co-habiting with Mr A is, as the respondent contended, not determinative. It is, however, a material circumstance that weighs against the formation of an opinion that the applicant and Mr A were, or are, in a de facto relationship.

11. Given these matters, I find that the social aspects of the applicant’s and Mr A’s relationship are not such as to warrant the formation of an opinion that they were or are in a de facto relationship and are, indeed, inconsistent with the formation of such an opinion.

    Sexual Relationship

12. I accept the evidence of both the applicant and Mr A to the effect that, apart from one occasion in 2011 when their child was conceived, they have never had, and do not have, a sexual relationship (or, indeed, a relationship of a romantic nature).

13. While recognising, as stated earlier, that the physical aspects of a relationship are not determinative as to its nature, nevertheless, the general absence of a sexual relationship between the applicant and Mr A weighs against the formation of an opinion that they were or are in a de facto relationship.

    The nature of their commitment to each other

14. In looking to the nature of the applicant’s and Mr A’s commitment to each other consideration needs to be given to:

    (a)the length of the relationship;

    (b)the nature of any companionship and emotional support that they provide to each other;

    (c)whether they consider that the relationship is likely to continue indefinitely; and

    (d)whether they see their relationship as a marriage‑like relationship or a de facto relationship.[41]

    [41] Act, s 4(3)(e)(i)-(iv).

15. The applicant and Mr A have been friends for around a decade having met in 2010 or 2011. They first co-habited towards the end of 2011, albeit it was for only roughly nine days to a fortnight. According to the applicant, since then they have co-habited on and off, more on than off.

16. Insofar as their relationship is one of friendship, on the material before me there is nothing to suggest that it will not continue indefinitely. Moreover, insofar as their relationship entails co-habitation, it, too, seems likely to continue indefinitely. Neither the applicant nor Mr A has plans to live apart. According to the applicant, she is content to have Mr A live with her as long as her older son needs Mr A and as long as Mr A “does the right thing.”[42] 

    [42] T16.

17. As to the nature of any companionship and emotional support that they provide to each other, I mentioned earlier that the relationship of the applicant and Mr A goes beyond one simply based on their parentage of a child with special needs. Mr A lives with the applicant in part to protect her from their son’s violent outbursts. It is also clear that Mr A assists the applicant when necessary, in matters unrelated to their son,[43] while the applicant has, in effect, helped fund Mr A’s share of household expenses when he was not deriving any income. The nature and level of this mutual support, however, is no more indicative of a de facto relationship than it is of a relationship built on friendship (or, at least, a close friendship). Indeed, a friendship rather than de facto relationship is indicated where, as here, any need or desire for romance is not met within the confines of the relationship. 

    [43] The applicant at the hearing acknowledged that Mr A on occasion took her to medical appointments and assists with her younger child when she is unwell.

18. Lastly, it is clear that both the applicant and Mr A see themselves as friends, albeit good or best friends. Each of them gave evidence to the effect, however, that, in their view, at all relevant times, they were not in a de facto relationship. While generally subjective views need to be considered in the light of objective indicators as to the nature of a relationship,[44] they are nevertheless of relevance in considering the nature of the commitment members of a putative couple have to each other.[45]

    [44] Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5 at [27].

    [45] Boskoski and Secretary, Department of Social Services [2014] AATA 915 at [63].

19. I am not satisfied that the commitment the applicant and Mr A have to each other is unique in the sense of being “different from the commitment that each person has to any other person.”[46] 

    [46] Re Pelka v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92 at [30].

20. Given these matters, I find that the nature of the commitment the applicant and Mr A have to each other is not such as to warrant the formation of an opinion that they were or are in a de facto relationship.

    CONCLUSION

21. Having regard to all the circumstances of the relationship between the applicant and Mr A including, in particular, the matters set out in s 4(3) of the Act, I am not of the opinion that they were on 16 October 2019, or are now, in a de facto relationship.

22. Hence, the decision the subject of review is set aside and, in substitution for that decision, the Tribunal decides that the rate at which applicant’s DSP is to be paid is to be worked out on the basis that she was not on 16 October 2019, and is not now, a member of a couple with Mr A. 

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

......................[SGD].....................................

Associate

Dated: 29 June 2021

Date of hearing:	17 May 2021
The Applicant:	Self-represented
Advocate for the Respondent:	Brian Sparkes
Solicitors for the Respondent:	Services Australia