HWNX and Secretary, Department of Social Services
[2015] AATA 826
•27 October 2015
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/4175-7
General Division )Re: Secretary, Department of Social Services
ApplicantAnd: HWNX
RespondentDIRECTION
TRIBUNAL: Ms N Isenberg, Senior Member
DATE: 26 November 2015
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- Where the front page of the decision reads “HWNX APPLICANT” the decision shall now read “Secretary, Department of Social Services APPLICANT”
- Where the front page of the decision reads “Secretary, Department of Social Services RESPONDENT” the decision shall now read “HWNX RESPONDENT”.
............................[sgd].......................................
Ms N Isenberg, Senior Member
HWNX and Secretary, Department of Social Services (Social services second review) [2015] AATA 826 (27 October 2015)
Division
GENERAL DIVISION
File Number(s)
2014/4175-7
Re
HWNX
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
Decision
Tribunal Ms N Isenberg, Senior Member
Date 27 October 2015 Place Sydney The decision of the Social Security Appeals Tribunal is affirmed.
...............................[sgd].........................................
Ms N Isenberg, Senior Member
Catchwords
SOCIAL SECURITY – Pensions and Benefits – whether Respondent a Member of a couple – whether Respondent overpaid – marriage-like relationship – financial aspects – nature of the household – social aspects of the relationship – sexual relationship – nature of commitment to each other – not a member of a couple during relevant period – decision affirmed
Legislation
Social Security Act 1991, s 4
A New Tax System (Family Assistance) Act 1999, s 3
Cases
Day & Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415
Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor [2011] AATA 162
Pencev & Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404
Pelka v Secretary, Department of Family and Community Sen/ices [2006] FCA 735
RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35
Secretary, Department of Employment and Workplace Relations & Gilson [2007] AATA 1361
Secretary, Department of Employment and Workplace Relations & Sperring [2007] AATA 1050
Secretary, Department of Family and Community Services & VBH and Anor [2006] AATA 1
Secretary, Department of Social Services and Melvin [2015] AATA 248Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164
REASONS FOR DECISION
Ms N Isenberg, Senior Member
27 October 2015
background
From December 2012 HWNX was paid Family Tax Benefit (FTB), Child Care Benefit (CCB) and Parenting Payment (PP) at the single rate. The applicant Department (the Department) later found her to be a member of a couple with Mr C and that, as a consequence, she had been overpaid;
·FTB ($7,056.14 for the period 14 December 2012 to 30 June 2013),
·CCB ($2,567.85 for the period of 17 December 2012 to 30 June 2013), and
·PP (for the period 14 December 2012 to 7 February 2014).
That decision was affirmed on internal review but was overturned by the Social Security Appeals Tribunal, who found that HWNX was not a member of a couple with Mr C during the period of 14 December 2012 to 7 February 2014. The Department seeks review of that decision.
issues
It was conceded on HWNX’s behalf that if I were to find that she was a member of a couple there were no submissions she could make about recovery of the debt.
The only issue to be decided therefore was whether HWNX was a “member of a couple” with Mr C and, if so, for what period?
LEGAL FRAMEWORK
Subsection 4(1) of the Social Security Act 1991 (SS Act) defines “partner” as follows:
partner, in relation to a person who is a member of a couple, means the other member of the couple.
As HWNX and Mr C were not married during the relevant period, they can only be considered a member of a couple if they fulfil all the criteria under s.4(2)(b) of the SS Act which relevantly provides:
…
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
…
Subsections 4(3) & 4(3A) of the Act outline when a person is considered to be a member of a couple for the purposes of s.4(2) of the SS Act:
Member of a couple—criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of … subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.
(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
Section 3 of the A New Tax System (Family Assistance) Act 1999 (“the FA Act"), states that the definitions of “member of a couple" and “partner” for family assistance purposes are the same as under the SS Act.
CONSIDERATION
The Department’s case, in substance, is that after HWNX separated from her husband, Mr T, and moved out of their house in December 2012, taking their 2 children with her, she immediately began a relationship with Mr C, moving into a house in Dundas (the Dundas property) with him. They lived there for about a year, before Mr C bought (in his own name) a house in Glenmore Park (the Glenmore Park property) in late 2013 into which they moved in February 2014.
On the other hand, HWNX’s case, in outline, is that when she left her husband, she, with their two children, moved into the Dundas property. HWNX was isolated during her marriage, had little family support and eventually developed a close bond with Mr C when they met at work. He helped her financially in leaving her husband. In early 2013 they began dating until late 2013. They would see a lot of each other and while Mr C would sometimes stay over at her place, he only did so when HWNX’s children were not there. At about the same time as HWNX separated from her husband, Mr C, who had been living in his apartment at Westmead (the Westmead apartment), decided to move back to his parents’ home, where he lived rent free, and to rent out the Westmead apartment to save money to buy another property, as he had done to buy the Westmead apartment. HWNX wanted another a child, and she persuaded Mr C to participate in IVF with her. The relationship broke down in about September 2013 when she became pregnant. They nonetheless continued to see a lot of each other and continued their close friendship. In late 2013, HWNX was forced to move from the Dundas property because the owners were selling it. She went to stay with Ms E for about two months from December 2013 to February 2014. Mr C decided to try to reconcile with her, and asked her to move into the property at Glenmore Park (the Glenmore Park property) which he had recently bought. She moved in with him in February 2014, and told Centrelink of that decision. Their daughter was born in about May 2014.
At the hearing evidence was given by HWNX, Mr C, HWNX’s mother, Ms E, HWNX’s friend with whom she stayed, Mr C’s parents, Mr T (HWNX’s ex-husband), Daniel Sciberras, (‘the agent’), and Professor Illingworth of IVF Australia.
HWNX’s Background
HWNX gave evidence that she had had a difficult upbringing and had left home and school when she was 15 or 16. She discovered that the man she believed to be her father was in fact her step-father; further, he abused her and, when she complained to her mother, she was disbelieved. This led to an estrangement from her mother for some years. HWNX formed a relationship with an older man who drank, took drugs, gambled excessively and was violent. She attempted a hairdressing apprenticeship but “it didn’t work out”.
She met Mr T, and they married in 2007. They had 2 children who were born soon thereafter. Before her second child was born she discovered evidence of her husband’s infidelity. She started taking steps to leave Mr T from as early as 2010 but received advice that she should remain with him for the sake of the children. Mr T had told her he would never give up the children.
In order to avoid having contact with Mr T, she changed her work to the night shift at the insurance company where she worked. She put the children into childcare while she slept during the day. She applied for recognition by Centrelink as ‘separated under one roof’ in May 2012. Her marriage ended in early 2012 when his infidelity continued and she was worried she would “catch something”. She did not want her children to grow up in a household where the father was so domineering. She received psychological counselling; she had a “panic attack” and was hospitalised. She tried to save money but had insufficient funds to finance leaving her husband. She investigated refuges and subsidised housing. She had no-one to talk to, and, at that time, was still estranged from her mother. Other family members were equally unsupportive.
Both HWNX and Mr C gave evidence about meeting at the insurance company where they worked in about mid-2011. Their shifts overlapped and they developed a friendship, which at first was somewhat tentative. They eventually talked about her past and her anxiety, and he opened up to her about his own anxiety and depression that had led, in the past, to episodes of self-harm. Amongst other things, they discussed coping strategies. She told him about her home situation and that she did not think she had the finances to leave her husband. He offered to help.
She moved jobs to another insurer in September 2012. She and Mr C kept in touch by text and he visited her home. They had never been out on a date until after she had moved into the Dundas property. They did not commence ‘dating’ – apparently a euphemism for a sexual relationship – until early 2013. Both HWNX and Mr C gave evidence that he would never stay at her home while the children were there because Mr T was very disapproving of any other man being around his children.
Financial aspects of the Relationship
HWNX provided documentary evidence to the SSAT that she was declared bankrupt in 2007 and discharged in 2010.
HWNX said that she did not know how Mr T would react to her leaving and thought that if she had a bank account he could not access and she had more funds, her position would be less uncertain. By the time she left him she had saved about $2000. Her mother told her she would never be able to finance the children’s care on her own. She said that her mother, who had also been bankrupt had had an account closed and she was worried the bank might have reservations about her having an account. HWNX was relieved when Mr C offered to open an account with her, because he ‘had not been bankrupt’. HWNX and Mr C opened a joint bank account with St George in December 2012 (the joint account).
The evidence of both Mr C and HWNX, however, was that she is the only one who operated the joint account. Their evidence was that the deposits into the account by Mr C were a loan, which she was repaying up until she moved into the Glenmore Park property with Mr C in February 2014. She explained that the account was opened as part of her preparations to leave her husband and the decision to do so was made in a state of significant stress and fear about his reaction. She said that in hindsight it all seems excessive, but at the time she thought she needed to create a new account that would be secure in case her husband accessed her other accounts. Mr C’s role in this was to help her get an account, in other words, it was understood between them that in reality it was her account.
At first she asked Mr C to lend her some money. He continued to help her throughout the relevant period, motivated by his close friendship with her and desire to help her get away from her husband, by lending her regular amounts of $900 per fortnight to help her budget. HWNX paid him back regularly by giving him her child support, as well as in several lump sums, some from selling jewellery and her engagement ring. This is consistent with evidence of HWNX’s approaches to a gold dealer via their website.
Mr C regularly deposited approximately $900 into this account from 24 December 2012 to 16 October 2013, from the account into which his wages were paid. Other than the deposits, he said, he did not use the account. A number of the deposits were labelled “bills and rent" (or a variant of that phrase). He said he used that phrase because that is what HWNX was going to use the money for. He did not think there was any reason he should have used the term ‘loan’ when making the deposits. She needed the money to finance the rent, the car expenses and the children’s needs. Without it, she conceded, she could have ‘scraped by’, but was conscious she had put the children in a disadvantaged financial position by leaving their father. Mr C kept making the deposits even after they broke up in about September 2013. He said he was not going to stop just because he was having problems.
HWNX made a similar number of deposits of $900 from one of her bank accounts to the joint account. She said that her pay went into her sole account and she paid back Mr C via the joint account; entries appear to have been recorded as ‘C’. As her account did not have a card attached to it she would use the joint account card and reimburse the account.
From the joint account, a number of everyday expenses were paid during the relevant period eg payments to supermarkets, payments for a Foxtel subscription, utilities, petrol, furniture and rent. The Department contended that these payments suggest that not only were HWNX and Mr C living together at the Dundas property, but they took joint responsibility for basic necessities and utilities, and intermingled their finances in order to cover these expenses.
HWNX was referred to the ‘Relationship Details’ form she had completed on 13 December 2013 wherein she had denied having a joint account. She said that by then Centrelink had started to question her relationship with Mr C so the account had been closed by the time the form was completed.
Mr C gave evidence that he only agreed to make the deposits on the basis that HWNX would pay him back. There was no formal agreement. They both gave evidence that to pay Mr C back she had given him $2000 she had saved before leaving her husband. She also gave Mr C her child support as she received from Mr T. Mr C also owed her for his share of the health insurance. She also sold some of her jewellery to repay him and provided evidence of contact with a gold dealer. She later sold her engagement ring and gave Mr C the proceeds. He said he kept the cash, rather than deposit it. By about June 2013 she thought she had ‘pretty much’ paid him back. Then there were the costs associated with the IVF and she fell behind again. Mr C’s evidence was that he kept track of how much HWNX owed him, and he did not mind lending her the money on an ongoing basis because she was paying him back. When she moved in with him in February 2014 he forgave the outstanding debt, and threw out the notepaper on which he had recorded how much she had owed him, which by that time, he thought, was about $5000.
On 18 April 2013, HWNX and Mr C entered into a loan agreement for over $29,000, for the purchase of a car. There they declared themselves as “de facto” and Mr C is listed as the main borrower and HWNX as the co-borrower. Both are jointly responsible for the loan which has monthly repayments of about $480. Their evidence was that HWNX needed a new car to transport the children, and she thought she was unlikely to obtain a loan herself, because of her poor credit history. It was understood between them that the loan was hers and she was to repay it. The evidence shows that HWNX has always made repayments on time from her own account, consistent with the understanding between them. She also paid for all the insurance and other associated costs. In a statement she provided to Centrelink she said she had never received financial help from Mr C. Both explained in their evidence that the money he gave her was by way of a loan and they did not consider that to be ‘financial assistance’ because she was paying it back; it was not ‘a handout’.
Mr C exposed himself to liability for the sake of HWNX, such as opening a joint account and being jointly responsible for a car loan, in a manner that demonstrates concern for her well-being and significant personal commitment during a crisis in her life.
The Department submitted that the financial evidence suggests that they shared strong mutual financial dependency and pooled their assets purposely in order to obtain benefits for each other. HWNX and Mr C did not dispute this.
The Department suggests that the agreement to split the cost of IVF weighs in favour of the conclusion they were a couple. The evidence was that HWNX and Mr C agreed to split the cost of undertaking IVF together, totalling approximately $9,000. Mr C paid the whole amount for the IVF on his credit card. The fact that HWNX was repaying Mr C for her share of the IVF and that he forgave the loan when the two of them began to live together in February 2014, however, supports the view that prior to that date they were not a couple.
The Department noted that Mr C was also included on HWNX’s medical insurance with Medibank Private. HWNX explained that they had discussed health insurance and Mr C told her he did not have any. Consequently, when she offered to include him on her insurance, they not only received a reduced rate, but they both benefited from the discount to which she was entitled. “Spouse” was the only option on the form. At the SSAT hearing she produced her Medicare card which did not include Mr C.
Nature of the household
HWNX’s evidence was that she needed a 3 bedroom home as she did not want the children to have to compromise from what they had had in the former family home, especially as her younger child was prone to anxiety. She did not think that, with her income and her poor credit history that this was achievable. Mr C was happy to put his name on an application for the tenancy at the Dundas property, so he could ‘help her move out’. On the tenancy application, dated 24 November 2012 it was clearly noted that they only wanted ‘one name on the lease’. HWNX noted that, at that time, they were ‘not even dating’. The agent, in his evidence did not recall telling HWNX that her prospects of obtaining approval were less as a single mother. The tenancy agreement was entered into in her name only. The agent said that it was desirable to have a lease in one name only, although this mostly applied where there may be transient occupants such as students. He assumed though, that they were both going to live there.
HWNX said it was her grandmother, not Mr C, who provided the funds for the bond, but she subsequently had a falling out with her.
The agent had informed Centrelink that Mr C was ‘listed as living at the property”, despite him neither being listed as a tenant nor as additional occupant. He had both their email addresses and emailed them both about inspections. He thought he would remember if one had been specified as the preferred contact. HWNX agreed that the agent probably thought they both lived there. She welcomed Mr C dealing with the agent, especially as there were some maintenance issues that she preferred him dealing with. She agreed that on an occasion when the agent came to inspect that Mr C was there.
The agent said he only attended the property once – in April 2013 at about lunchtime. Mr C, HWNX, and the children were there. He saw nothing to suggest who might be living there.
The agent who took over the tenancy late in 2013 understood that HWNX was the only occupant.
HWNX and Mr C have explained that he also applied for the lease to, in substance, help her get the tenancy. I accept this practice is not uncommon as single women on social security may experience difficulty obtaining rental properties.
Both HWNX and Mr C sent emails to the agent for the Dundas property, confirming when Mr C or HWNX will be at the property to give access to the property. The emails do not contain any representation by either HWNX or Mr C that Mr C is living there. It is reasonable to infer from Mr C’s reply to the agent’s email seeking to arrange a Saturday inspection of the property that Mr C had stayed there overnight. But this is consistent with HWNX’s evidence that Mr C would stay overnight on weekends when the children were at her husband’s. The second email from the agent, seeking to arrange a Wednesday inspection, is entirely neutral as to whether Mr C has been there, as HWNX simply says both of them are at work.
These emails show again that Mr C was closely involved in HWNX's life, which is entirely consistent with the close relationship they had, and the fact that they were dating. HWNX’s lack of family support to help her as a single working parent, and Mr C’s willingness to help her.
HWNX denied that Mr C attended to maintenance issues around the house, noting that there was little to be done that was not attended to by the agent. HWNX’s mother’s evidence was that she never saw Mr C undertake any maintenance around the Dundas property.
As to where Mr C was living, he said that he moved back to his parents’ home to save for another property. He had a wing of the house to himself - his ‘safehaven’ - but he said he still tried to have little to do with his parents, especially his father. Mr C’s father agreed they had a ‘personality clash’ and there were a lot of arguments.
His parents’ evidence was that he came and went as he pleased from their home when he lived there in 2013. Some weekends and about 1-2 nights per month he was not there but he never said where he was, and they never asked. His mother noted whether his bed had been slept in or not. She also did most of his washing and there would be his clothes lying around on the floor. Because of his depression they ‘left him to his own devices’ but if she had not seen him for a day or so she would check on him, and his father would only know if he was there by the light under the door. His father chose not to go into his son’s wing because it was so untidy he would get upset. Mr C’s parents would go to bed and rise again early. Mr C could have accessed his wing through the garage. His father was certain his son was there when food would disappear from the fridge. They had some holidays during 2013 totalling about 7-8 weeks.
The parents’ evidence was that while there, their son kept to himself. They would worry that he might ‘do something’, such as overdose on his anti-depressants, and his mother would go into his wing to check on him. He had been medicated, with mixed success since he was at school.
Mr C was cross-examined extensively about the distance from his parents’ home to work (as compared to the Dundas property to his work) and his fuel expenditure as evidenced by the bank records. Ultimately this line of questioning was unhelpful as Mr C said he paid for some of his fuel in cash, so the bank statements were inconclusive.
As to why he did not move in with her once she had made a clean break from her husband, Mr C said that he did not know if he would be comfortable doing that because of the children. He did not know if he could ‘jump in’.
The Department submitted that the contemporaneous evidence supports its contention that Mr C and HWNX were living together at the Dundas property and sharing responsibilities for that household from December 2012 till they moved in February 2014 to the Glenmore Park property. The Department relied on the application for the car loan in which both HWNX and Mr C stated that they were in a de facto relationship and that their address was the Dundas property. The Department also referred, as discussed above, to HWNX having placed Mr C on her health insurance.
The Department also relied on Mr C's supply of the Dundas property address to his employer, RMS from 2 January 2013 to 9 December 2013, and as his postal and residential address on his income tax return for the 2012-2013 financial year. They supplied the Dundas property address for their patient registration with IVF Australia.
Mr C said, he used the Dundas property address on his tax return, and simply asked his tax agent to use the address, apparently leading the tax agent to make it his home address too. He is unsure, but thinks that his employer, may have the address because he asked them to send him something there.
Mr C gave evidence that he used the Dundas property for his correspondence because he had trouble with his father opening his mail and would then criticise him for how he spent his money. Mr C’s father confirmed that he would open all his son’s mail, and if he missed collecting the mail, would go through the bin to see what his son’s mail was, because he had reservations that his son was in fact saving money. His son asked him to stop but he would not. He did not know his son had re-directed his mail; he just thought he had stopped buying so much. He was concerned his son might buy drugs.
As to his drivers’ licence, HWNX and Mr C both explained that Mr C asked to use the Dundas address as his delivery address because he does a lot of online shopping. As discussed above, he had had trouble with his father opening his mail when items were delivered to his parents’ address. At a rough count, there are over 50 transactions via Paypal in Mr C’s accounts over the relevant period, suggesting there were a significant number of transactions during that time. I accept that proof of address is required when collecting parcels.
Both HWNX and Mr C’s firm evidence was that they did not live together until they moved into the Glenmore Park property. This claim is reiterated in the Relationships Details form she filled out dated 13 December 2013. The Department submitted that I should not accept as plausible HWNX’s or Mr C's explanations as to the nature of the household, given the extent of the independent evidence which suggests that not only were they living together but they were also pooling their financial resources and responsibilities.
Social aspects of the relationship
The Department referred to Mr C and HWNX having represented themselves as a de facto couple to a number of organisations and government departments during the relevant period, specifically:
·IVF Australia
·Medibank Private
·Australian Taxation Office
·Roads and Maritime Services
·BMW Australia Finance Ltd, and
·First National Real Estate
HWNX’s evidence was to the effect that many of the representations that she and Mr C were a de facto couple were made out of financial necessity.
Mr C said he told no-one about their friendship or that they were dating, because he had no friends.
Sexual relationship
HWNX and Mr C both gave evidence that they did not commence ‘dating’ until about February 2013. Both gave firm evidence that they did not commence a sexual relationship until February 2013. Mr C said he would see HWNX as often as he had done previously, namely several times a week – including coming to the Dundas property either before the commencement of his shift at 2 pm or after its conclusion at 10 pm. In fact, even when he was not working shifts he would try to avoid coming until after the children were in bed. He thought he had actually only seen the children at the Dundas property a couple of times. It was only after they commenced a sexual relationship that he would stay over on the weekends the children were with their father. Depending on his roster, that might mean he was there only one weekend in three.
When he first met the children he was described as ‘Mummy’s friend from work’. They would go out to cafes and shops. Both were also insistent that he would never stay overnight when the children were there, as their father would frequently drop in unannounced to see the children, including in the mornings before school. Mr T confirmed that he would drop by just to say hello to the children at least a couple of times a week. He would often go there in the morning to help get the children off to school. He could see into HWNX’s bedroom and saw no sign of anyone else living there. He was ‘100%’ sure the children would have told him if Mr C, or anyone else, was there. He said he first heard about Mr C at the end of 2013, and met him in early 2014 when HWNX and Mr C moved into Glenmore Park. He did not know until then that she was pregnant.
HWNX’s evidence was that she was concerned that her custody of the children may be jeopardised because her ex-husband did not want another man around his children – even as a friend. Mr T gave evidence that up until the time HWNX moved out of their home he told her he would ‘not be comfortable’ if she dated. After she moved he was not so concerned, but did not want ‘another man living with [his] children’. He agreed in his evidence that he may have said that he would ‘take the kids’ if there was another man living with HWNX.
Her mother gave evidence that she first met Mr C in early 2013. When she was aware they were going out she had given him the ‘third degree’. Her daughter had told her about Mr C suffering anxiety as she, HWNX did. She did not realise the relationship was serious. When her own marriage broke down and after living in some temporary accommodation, she went to live with her daughter at the Dundas property for about 3 months from about September to December 2013. She said while she was there, there was no intimate conduct between HWNX and Mr C, such as embracing. It looked like they were just friends. She knew not to intrude because she and HWNX had not had a good relationship. During that time she saw him a few times at the Dundas property, mainly in the evenings, and a couple of times on the weekends when the children were with their father. While she was there Mr C did not stay over. When he would come over she would go outside or otherwise keep to herself. She did not think he had meals there, although she was eating out herself frequently. She was cross-examined about her access to parts of the house. She said she freely went into her daughter’s room and also into the ensuite. She saw no men’s clothes or other male paraphernalia.
HWNX’s evidence was that she had wanted to have more children. Her mother also gave evidence to that effect. HWNX’s evidence was that she was afraid she would not be able to conceive as she had an irregular gynaecological history. Her mother said she suggested she get herself ‘checked out’. She received the results of a pelvic ultrasound in February 2013 diagnosing ovarian cysts. She knew of others with a similar diagnosis who had had difficulty conceiving. She asked Mr C to help her fall pregnant, despite the fact that they were only just started dating. At her suggestion he underwent sperm analyses in February and March 2013 because she had enquired about IVF and knew ‘all the tests’ had to be done before they would be considered for the program.
She said that she persuaded Mr C to help her conceive via IVF. He went with her for consultations and was the donor. She thought it ‘would be nice if he stuck around’ but this was not determinative of her decision; she did not think it would be much harder being the single parent of 3, as compared to 2, children. They did not really discuss the future. For his part, Mr C explained his own feelings about wanting to have a child at that time and his hopes for the relationship with HWNX. He thought it would give him ‘a reason to live’, even if he were just to have contact with the child.
She was asked about the referral letter for IVF from her GP dated 11 March 2013 that recorded ‘she tried for the last 12 months to have a child with her partner’. She said that she had enquired of IVF about pre-requisites for treatment and had been informed that she needed to have been ‘trying’ for 12 months. Professor Illingworth confirmed that this was a pre-requisite. He said that he accepts the information he is given at face value.
She could not recall what she had told her GP about a ‘partner’ in order to get the referral. Clearly she had not been ‘trying’ for 12 months because she had not even separated from her husband until the end of 2012.
Professor Illingworth, she said, told them they would not need IVF to conceive, and Professor Illingworth’s evidence was that his initial advice was for them to ‘keep trying’ and come back in another year. HWNX however preferred information she obtained from the internet and was convinced there would be problems. She did not think of the expense, the emotional side effects or the future. She was unclear about reading the associated paperwork, but agreed they represented themselves as a couple so that she would be able to receive the treatment. When they returned to Professor Illingworth in July or August 2013 they said they wanted to get on with it as there would be a higher probability of quick conception. He said that counselling is not routinely arranged for persons presenting as a couple although it is available if they wish.
After one cycle she became pregnant. Mr C, she said, ‘freaked out’ with the imminent responsibility of fatherhood and did not know how to deal with the situation. Mr C confirmed in his evidence that at the time he was not sure if a child would in fact motivate him to live. He ‘wasn’t ready’; he ‘pushed back’; he found the situation ‘surreal’. They broke up. He wanted to be alone, HWNX said he ‘shut down’, as he does when he is depressed. She was happy to ‘be there for him’ as he had been for her, and they were still friends. She was worried that he might engage in self-harm again. During that period they ceased a sexual relationship but remained friends. He came to her home almost as much as he had before, and they talked on the phone a lot.
After she moved in with Ms E when her tenancy at the Dundas property ended he saw her there a couple of times. He wanted to ‘make things right’. Her friend gave evidence that HWNX and the children moved in with her shortly before Christmas in 2013. They each kept to themselves, and Ms E was frequently working. She had met Mr C before HWNX moved in and found him pleasant but very quiet. During that time HWNX and Mr C would go out for coffee. He never stayed over. He would mainly come when the children were with their father. She thought they were ‘a couple’, but still ‘working on it’, although she never discussed the relationship with HWNX.
Commitment to each other
The Department submitted that it is relevant that the commitment demonstrated between HWNX and Mr C is mutual. It noted that Mr C was nominated by HWNX as her emergency contact with her employer. HWNX however gave evidence that although at that time she was still living with Mr T, she was trying to leave him and therefore did not want to nominate him. At the time she was estranged from her mother, so recording her as her emergency contact was not appropriate either.
They opened a joint bank account together in December 2012.
It was submitted by the Department that the decision to undergo IVF together is evidence of their mutual intimacy and trust, and the belief that their relationship would continue indefinitely. This is contrary to the evidence of both HWNX and Mr C, although the solicitor for HWNX conceded that IVF is something usually undertaken by settled couples. There is evidence that HWNX and Mr C represented that they had been trying to conceive for 12 months prior to her visit to her GP in April 2013 and they wanted to know why they had not been able to conceive. Both were described as '‘really quite keen to get going”. And they attended IVF appointments together. Mr C provided semen samples and HWNX and Mr C signed ‘Consent for Assisted Reproduction Treatment’ forms on 20 August 2013; the procedure took place in September 2013, and HWNX visited Professor Illingworth at the IVF Australia clinic for an early pregnancy ultrasound scan. I accept that IVF is an expensive and invasive process which ordinarily requires a great amount of commitment and support between couples.
They went together to tell his parents, who she had only met once before, about the pregnancy. Mr C said his parents ‘weren’t happy’ but were polite. Mr C’s mother said it was a ‘big shock’ because she and her husband did not even know her son and HWNX were a couple. She thought they seemed somewhat embarrassed. She was worried because HWNX already had two children, and Mr C’s father was worried at the time that HWNX was ‘after’ his son, and had thought the pregnancy must have been a mistake and he wanted DNA testing to be done. Mr C’s father said he now considers HWNX to have been a ‘lifesaver’ for his son.
Mr C had not previously told his parents about HWNX. Once, in about mid 2013 she had come to the door and she and Mr C had gone to his room briefly. Mr C’s father had only had a ‘quick glimpse’ of her. Mr C’s parents said their son told them she was someone he used to work with.
Mr C said he decided later that he had to get some ‘normality’ into his life and specially bought a house with sufficient bedrooms so HWNX (and the children) could move in if she would reconcile with him. He did not discuss the purchase with her, but told her of his plan after she had moved from the Dundas property to her friend’s. She only agreed to move in, he said, on the condition he became, and continued to be, compliant with his medication. She did not move in until a few months after the purchase was finalised. He chose Glenmore Park because he needed support from his parents who lived nearby, and thought his mother might do some childminding. (Mr C’s mother described the child as now being ‘the centre of [their] lives’)
HWNX’s mother said she knew at the time her daughter’s IVF was successful that Mr C was the father. Her daughter had always wanted a big family. Mr T also gave evidence that HWNX had wanted more children.
CONCLUSION
At the outset of the hearing, and again during final submissions, the parties were invited to make submissions about the application of s.4(3A) of the Act in circumstances where HWNX claims that, until February 2014 she and Mr C did not live together, when s.4(3A) suggests that I (standing “in the shoes” of the Secretary), must not form the opinion that the relationship between the parties is a de facto relationship if they are living separately and apart on a permanent or indefinite basis.
The Department’s position was that this should present no problem to the Tribunal because, in its view, the evidence was clear, namely that HWNX and Mr C were living together at the Dundas property on a daily basis. Alternatively, it was submitted, that it was open to the Tribunal to find Mr C stayed there for a substantial part of the week on a regular and predictable basis and that he shared in the expenses of running the household. It was submitted that the Tribunal is to form its view about the relationship from all of the circumstances and that the indicia of a relationship set out in s.4(3) are not exhaustive.
As to the work to be done in the application of s.4(3A) it was submitted that the s.4(3) criteria inform the Tribunal’s opinion in relation to s.4(3A). It was submitted that s.4(3A) is merely another aspect to be considered in the context of ‘the nature of the household’. It was further submitted that even if I were to find that HWNX and Mr C did not live under the same roof for all or a substantial portion of the relevant period in question, they should not automatically be considered as living ‘separately and apart’, as that that expression was to be interpreted broadly. To find that they lived ‘separately and apart’ it was submitted, I would need to find a breakdown of the relationship. The submission was that “living” is not limited to cohabiting but included practising economies of scale. Further, the Department submitted that because HWNX and Mr C had reconciled after their breakup in about September 2013 I should not find them to have been living separately and apart on a permanent or indefinite basis.
I was referred to Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546 where French J, after considering authorities relating to predecessor provisions corresponding to s.4(2) and s.4(3) of the SS Act, said (at 555-556):
Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
(1) Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
(2) Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people; and
(e) the nature of the people’s commitment to each other.
(3) In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s. 4(3).
(4) Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
(5) Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements; or
(e) mutual commitment.”
In particular my attention was invited to 5(b) that ‘cohabitation’, or otherwise, it was submitted, was not determinative of a marriage-like or de facto relationship.
I was also referred to Secretary, Department of Social Services and Melvin [2015] AATA 248 where the Tribunal found that there was an ongoing marriage-like relationship, notwithstanding the parties had separated and noting that the respondent had stayed at the home of the other party for “significant periods on a regular basis”. The Tribunal found their pre-existing relationship – a “marriage-like relationship” – had not materially changed. It seemed to me that this case did not assist the Department because in that case the Tribunal was considering whether there had been a change from their previous living arrangements whereas in the present matter HWNX contended that she and Mr C had never cohabited until she moved into the Glenmore Park property in February 2014.
I was also referred to Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor [2011] AATA 162 where the Tribunal said at [59]-[60]:
59. The test to be applied for present purposes is not simply whether two people live together in the same house, or whether they are living in separate premises. There are many examples of married couples who spend periods of time living in different places without disturbing the marriage-like nature of their relationship. I can accept that, from time to time, Ms Hogan and R may have lived in separate abodes for short periods from February 1997 to December 2008. But that is not the end of the matter.
60. The concept of “separately and apart” was discussed by the High Court in Main v Main and by the Federal Court in Staunton-Smith v Secretary, Department of Social Security. What must be considered is not only whether the parties live separately, in physical terms, but also whether the marital relationship (the consortium vitae) has not been forged or has broken down. The two limbs of the test are conjunctive. Sections 4(2) and 4(3A) require both elements to be established before it can be said that a marriage-like or member of a couple relationship has ceased to exist. These are matters of fact and degree.
(Footnotes omitted)
That matter also referred to a married couple who had an ‘on again/off again’ relationship. The Tribunal found that although they may have lived in different places, one party was a frequent and regular visitor to the home of the other, and that during periods of physical separation there was resumed intimacy and reconciliation, indicating an enduring commitment and the continuation of the essential nature of their relationship as a couple during these periods of temporary separation.
It was submitted on HWNX’s behalf that the application of section 4(3A) is problematic in circumstances where the parties have never lived together, and in those circumstances the section had no work to do. It was submitted that it includes both physical and emotional separation and is to distinguish situations where there are temporary breaks. Further, while subsequently the parties commenced living together, it was submitted that the Tribunal should look at their intentions during the relevant period.
For the reasons discussed below, I do not have to reach a view about the work to be done by s.4(3A), but I have reservations about its application in circumstances where the parties have never lived together.
Turning to the criteria in s.4(3), the Federal Court in Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164 stated at [20]:
It is not suggested that this list [which was similar to, but not quite the same as in s.4(3)] is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
(Emphasis added)
The Tribunal must consider all the circumstances of the case and make an objective assessment based on the evidence. In Secretary, Department of Family and Community Services & VBH and Anor [2006] AATA 1 at [94] the Tribunal stated:
The s.4(3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.
I accept that there is clear evidence that Mr C was a regular and supportive presence in HWNX’s life during the relevant period and that there was a level of dependency between them which was physical, emotional and financial. The Department contended that this relationship was qualitatively different from those she shared with her family or the ex-husband. I do not find that to be surprising, given HWNX’s fraught family history. It does not, however, of itself, suggest she was ‘a member of a couple’ with Mr C, just because of the special nature of their relationship and because he was “someone she could talk to” and who “understood [her] anxiety" as she described the relationship in her statement. Being a member of a couple entails a lot more than ‘dating’.
The Secretary referred to RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35 at [35] and submitted that the assessment of credibility is of vital importance in determining whether a person is a member of a couple. The Secretary also relied upon Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415. In Day the Tribunal said, at [43] that if the person’s evidence is inconsistent with objective or independent evidence before the Tribunal, the Tribunal should generally place greater reliance on that objective/independent evidence. In this matter although there was a significant amount of objective material that may have suggested at first blush that HWNX and Mr C were a couple, they gave consistent evidence which, to me provided plausible explanations for their conduct which had given rise to the objective evidence upon which the Department relied. Furthermore, independent evidence was provided by Mr C’s parents, with whom by all accounts he has had a difficult relationship, HWNX’s mother, whose relationship with HWNX has been and may still be problematic, and, curiously, Mr T, HWNX’s former husband who had difficulty accepting that his former wife may have found another male companion and had concerns for his children. The evidence of those witnesses, against the background of their likely unsympathetic views towards HWNX and Mr C and the consistent evidence of HWNX and Mr C themselves weighed heavily in HWNX’s favour.
The Department submitted that HWNX and Mr C’s relationship went beyond the sharing of resources to ease a burden or enable HWNX to survive monetarily. For the reasons discussed above, I do not agree.
In Secretary, Department of Employment and Workplace Relations & Sperring [2007] AATA 1050 at [70] I said:
....being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
(Emphasis added)
I was especially mindful in Sperring, as I am here, that not all relationships conveniently fit into what might be regarded as a traditional marriage-like relationship. This has been the view of the courts that have looked at the many cases to which this legislation and versions of it in other jurisdictions (eg in relation to the ‘widows’ of veterans), has given rise. To say ‘each matter is different’ is an understatement. Each relationship, whether one ultimately considered to be a de facto relationship or not, has its own features. Those features may not be understood by others.
Taking into account all the circumstances of the relationship between HWNX and Mr C, I find that HWNX was not a “member of a couple” with Mr C for the period 14 December 2012 to 7 February 2014.
decision
The decision of the Social Security Appeals Tribunal is affirmed.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ................................[sgd]........................................
Associate
Dated 27 October 2015
Date(s) of hearing 10, 11, 12 August 2015 Solicitor for the Applicant Ms G Thangasamy, Sparke Helmore Solicitor for the Respondent Mr M Butt
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