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

[2006] AATA 725

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 725

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/269

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN KENNY

Applicant

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

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date31 July 2006

PlaceBrisbane

Decision The Tribunal sets aside the decision under review namely a decision dated 7 December 2005 to pay the applicant at the married rate and substitutes the decision that Mr Kenny should be assessed at the single rate in respect of his entitlements because he is not a member of a couple. 

...........[Sgd]..........

MJ Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY - legally married – living under the same roof – whether member of a couple – decision set aside.

Social Security Act1991 s4(2) s4(3)

Pelka v Secretary Department of Family and Community Services [2006] FCA 735

McDonald v Director General of Social Security (1984) 1 FCR 354

Deborah Broadbent and Secretary, Department of Family and Community Services [2004] AATA 527

WRITTEN REASONS FOR AN ORAL DECISION

22 August 2006  Ms M J Carstairs, Member

1.      This matter was heard in Rockhampton and resumed in Brisbane when an oral decision was delivered.  Subsequently the applicant has asked for written reasons and these reasons answer that request. 

2.      John Kenny married Marie Kenny in 1986.  They have never divorced.  However they have spent periods of time separated.  At present they live at the same residence.  For a time, Centrelink accepted that although legally married and living together, they were nevertheless living separately and apart on a permanent basis.  As a result of forming that opinion Centrelink paid Mr Kenny his age pension at the single rate, whereas if they had regarded him as a married person, his entitlement would be to half the married rate of pension – a lesser amount.

3.      However some time later, that is, about August 2004, Centrelink decided that Mr Kenny should be assessed as a married person and then paid him the lower married rate.  Mr Kenny sought review of that decision, and he was successful in his appeal, an authorised review officer deciding that Centrelink had been correct to pay Mr Kenny at the single rate (T27).  A year later the question arose again – a file note recording that during a telephone conversation Mr Kenny had referred to his wife with the author noting that still living under the one roof – has been a long term if separated (T31).  Mr Kenny’s rate of pension was reduced to half the married rate soon after and now he asks this Tribunal to review that decision. 

4.      As far as Mr Kenny is concerned, nothing has changed.  The position, according to him, is that Mrs Kenny has come to live at his house because she needs accommodation which she otherwise cannot afford on her own and because she has assumed the care of two grandchildren (Mr Kenny’s step-grandchildren).  The parents of these two children are unable to care for them.

ISSUES

5.      The issue to be decided is whether or not Mr Kenny, a legally married person, was or was not living separately and apart from (his wife) on a permanent or indefinite basis: s4(2) of the Social Security Act 1991.

BACKGROUND

6.      The following facts were agreed and I rely on the outline of the respondent’s case as set out in the Statement of Facts and Contentions (exhibit R1) for them.

§  Mr and Mrs Kenny married on 22 December 1986; they are not divorced.

§  In 1999 they separated for about six or seven months.

§  Mrs Kenny’s two grandchildren, Ladice, born 5 January 2000, and Dylan, born 2 May 2001, came into Mrs Kenny’s care.

§  In August 2002 Mr and Mrs Kenny moved into their current shared rented premises.

§  From about December 2002 to 14 August 2003 Mrs Kenny resided in Yeppoon with the mother of her grandchildren, (not with Mr Kenny).

§  Both Mr and Mrs Kenny stated in a document to Centrelink that they separated in March 2004 (T16/55 and T17/63) after which a recommendation was made that they be paid at the single rate (T7), a decision later reversed (T20).

7.      Further to these agreed facts, Mr Kenny has provided other background information (T26, T49) where he outlines the circumstances of the living arrangements including the following:

·Mrs Kenny and her grandchildren only came to live with him as they had no where else to live.

·They pay for their own food and prepare their own meals.

·They look after their own domestic affairs such as cleaning and washing.

·They do not pool their respective benefits or income.

·Mr Kenny attends to his own personal needs in the household.

LEGISLATION

8.      The statutory framework for determining the nature of relationships has been examined recently by the Federal Court in the decision of Pelka v Secretary Department of Family and Community Services [2006] FCA 735. That case deals with the proper interpretation of s4(2) and s4(3) of the Social Security Act 1991.

9. The Act provides that a person will be considered to be a member of a couple if the requirements of s4(2) and 4(3) of the Act are met. Directly in issue here is s4(2)(a) of the Act but it is worthwhile to set out the whole of the provisions as they apply to both married and unmarried persons. The section provides as follows:

4(2)      Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a)the person is legally married to another person and is not, in the Secretary’s opinion, (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(b)all of the following conditions are met:

(i)the person has a relationship with a person of the opposite sex (in this paragraph called the ‘partner’);

(ii)       the person is not legally married to the partner;

(iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;………..

10.     As the specific reference in this section makes plain, forming the opinions, whether a person is legally married to another or not, takes place by reference to the matters set out in sub-section 4(3) of the Act.

11.     That sub-section provides as follows:

4(3)  In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or 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 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.

12.     Although His Honour in Pelka was dealing with persons who were not legally married to each other, I do not understand him to confine the following remarks solely to the examination of relationships where people are not legally married:

[46]  Having regard to the current provisions of s4(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 s4(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;
(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 s4(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;
(e) mutual commitment.

[47] The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.

13.I will approach the task before me with that guidance. 

14.     I also need to refer to one other matter which I asked the parties to address, namely any relevance of McDonald v Director General of Social Security (1984) 1 FCR 354, as regards the question of onus of proof in a matter such as this. I was mindful of the possible impact of this decision because Mr Kenny’s was a case where he was paid at the higher single rate of payment for quite some time. Several Centrelink officers, including a social worker, whose particular professional background is significant in matters of this kind, turned their minds to the question of the nature of the relationship between the applicant and Mrs Kenny on a number of occasions. However, I have come to the view that because Mr Kenny’s case is a rate reduction one only, rather than a cancellation case, Mr McDonald’s case is of less direct relevance. I have commented on this previously in Deborah Broadbent and Secretary, Department of Family and Community Services [2004] AATA 527.

15.     But I do not agree with Mr Belcher’s submission (exhibit R1) that there is a greater onus on Mr Kenny in this case.  Mr Belcher submitted that where the applicant and his wife had previously reconciled on a number of occasions, in the context of a long-standing marriage, a greater onus was placed upon the applicant to demonstrate the exact status of the current situation (exhibit R1). 

16.     Mrs Kenny gave oral evidence at the hearing as did Mr Kenny.  Her evidence   largely confirmed Mr Kenny’s evidence as expressed in the documents and orally, and aligned with the information that both of them had provided when completing their Assessment of Living Arrangements (AOLA) forms for Centrelink.  Briefly summarising the evidence as to financial matters, Mr and Mrs Kenny have no assets to speak of, apart from household contents.  Mr Kenny’s Income and Assets review in October 2005 (T29) showed he has no financial investments, shares or loans, owns no real estate, no cars, boats or caravans.  I have no reason to think that Mrs Kenny has any either.  She said in her oral evidence that she could not afford the money to pay a rental bond.  She said that if she could pay a bond, and could find an affordable housing, she would not be living with Mr Kenny.  She could not afford to pay rent of some $200 per week.  Mrs Kenny said that she has registered, and is on the waiting list, for a Housing Commission home in Rockhampton but has been told that the waiting list is 3 years.

17.     Mrs Kenny confirmed that within the home she does the housework, while Mr Kenny does the yard work.  They eat separately; she said he eats in front of the television whereas she does not want the children to develop that habit, so they eat in the kitchen.  She said that Mr Kenny goes to church three days a week and takes the grandchildren as she wants them brought up as Catholics despite the fact that she does not choose to attend church herself.

18.     Mrs Kenny said her grandchildren came into her care because their mother (who was her son’s partner for a time) was unable to look after all her children.  The mother has four other children.  As I understood Mrs Kenny’s evidence, some were fathered by persons other than her son.  All the children were born a year apart, so it is understandable that they would present a burden to the mother.  Nevertheless the mother retains the legal custody of Mrs Kenny’s grandchildren.

19.     Mrs Kenny said in her oral evidence that she had not known until recently, when given this information by Mr Eaddy that she could get a divorce from Mr Kenny without having to pay.  She indicated that she will now take the necessary steps.

20.     At the hearing before the Social Security Appeals Tribunal (T2), the following findings were made:

(i)Mr Kenny and Mrs Kenny were married in 1986 and have not filed for divorce.

(ii) In 1999 Mr and Mrs Kenny were separated for a period of six or seven months but then purchased a home in which they both resided.

(iii)In May 2001, Mrs Kenny’s two grandchildren came into her care and resided with Mr and Mrs Kenny.

(iv)In 2002 the house was sold and the net proceeds were negligible.

(v)On 7 August 2002 Mr Kenny rented accommodation at his current address and within two or three weeks Mrs Kenny and the children took up residence there.

(vi)Mr Kenny’s major commitment is to the grandchildren but he is providing Mrs Kenny with some financial support.

(vii)Mr Kenny is not actively involved in the care of or decisions about Mrs Kenny’s grandchildren.

(viii)Mrs Kenny suffers from Crohn’s disease and is relatively frail.

(ix)Mr Kenny assists her with the physical care of the children on occasions when she is unwell

(x)Mr and Mrs Kenny have no joint assets or liabilities.

(xi)Mr and Mrs Kenny occupy separate bedrooms and do not have a sexual relationship.

(xii)Mr and Mrs Kenny share general household tasks with Mr Kenny attending to outside and maintenance chores and Mrs Kenny to those inside the house.

(xiii)Mr and Mrs Kenny prepare and eat meals separately and each does his or her own washing.

(xiv)Mr and Mrs Kenny protect their privacy and have not made it widely known that they regard themselves as separated.

21.     It is a fair assessment that those facts have not changed substantially, nor have they been attacked in any significant way. 

22.     Before undertaking the exercise of assessing the facts in this case, it is important to record that both Mr and Mrs Kenny gave their evidence with candour and I considered I could take them on their word.  They were unable to fully explain some matters.  They each seemed to be genuinely surprised that the other’s name appeared on their respective Medicare cards.  Another matter that took on some importance was that the answers to their AOLA forms were remarkably similar – yet each was adamant that they did not collaborate in filling out the forms. 

23. Looking at all the material in this case, and taking into account the matters that must be addressed under s4(3), I took into account the following:

(a)Financial aspects – There is no intermingling of finances and no joint ownership of any property.  Of course there are many patterns of financial relations in marriages and I have to take into account that neither has any assets.  The evidence here is that these people divide up costs between them in what seems to be a basis of ensuring a roughly equal payment.  I accept that Mrs Kenny probably comes out better financially, but it is a moot point.  Mr Kenny pays the rent of $150 per week and it seems to me that food costs, given the needs of growing children, would a similar amount. 

There was no evidence of pooling.  I do not accept that the rental/purchase of a washing machine in 2004 (T16,T17) was evidence of pooling nor, indeed, was that submission made.  I accept Mr Kenny’s evidence that the washing machine was always his purchase and he says the repayments are direct deductions from his Centrelink payments. 

The weight of the evidence on financial aspects of the relationship points away from this being a marriage like relationship. At best it is neutral, because these people own nothing.  I took into account that they have owned property together in the past, but they do not do so now.  The fact of owning property together in the past does not assist in forming a view of the relationship now.

(b)Nature of the household –

I was satisfied that there was little joint responsibility for caring for these grandchildren.  I was mindful that they are Mrs Kenny’s grandchildren, and accept that Mr Kenny has no say in matters of responsibility relating to the children.  However, Mr Kenny is clearly a man who has strong beliefs in the nurturing of children and the proper way to provide a settled environment for them.  He described himself as a bit of a watchdog.  The need for this was more fully explained in the Centrelink Social Work Report Prepared for the Administrative Appeals Tribunal  by Social Worker Ms C Meikle (exhibit R2):

Mr Kenny described a situation where his step son was regularly violent in the home toward his then partner and the issue of appropriate care toward the children emerged. This led to the Dept of Community Services involvement and this resulted in care of the children being transferred to Marie. Mr Kenny encouraged access visits by his step son, despite drug use and periods of imprisonment as he felt there may be an opportunity for a sustained relationship in the future with his children. Despite this, Mr Kenny was concerned for the children’s safety and this is one of the main reasons for remaining in the family home. Step son has now been investigated for sexual abuse matters relating to the children so it appears Mr Kenny’s decision to remain in the home was warranted. Mr Kenny’s step son now acts out and becomes violent toward Marie and this has emphasised Mr Kenny’s need to reside in the home.

Nevertheless Mr Kenny does engage with the children – taking them to school on his way to his church.  He no doubt would step in if Mrs Kenny was ill.  But I accepted his evidence that he sees his role as one on the sidelines.  Mrs Kenny’s evidence was that she would not consult him on those matters.

Taking into account the facts of how the household operates and accepting Mr Kenny and Mrs Kenny as witnesses of truth, I was satisfied that the arrangement in the household was less than would be expected in a marriage. In a marriage it would be usual to share a bedroom, even if couples in Mr and Mrs Kenny’s age group might not have a sexual life, but otherwise have happy marriages.  You would expect to see collaboration on joint decisions; you would expect to see sharing of the enjoyments of home life such as family meals together.  These would be an indicators.  All these are absent.

Instead we see quite separate acitivites even in the home.  Mr and Mrs Kenny wash their own dishes and clothes.  I accept Mrs Kenny’s evidence that her bedroom is one shared with the younger grandchild.  Mr Kenny has his own bedroom.

(c)Social aspects of the relationship – there were some aspects again which were difficult to assess.  Neither person has an extensive social life but what there is was not in any way shared.  Mr Kenny’s social life centres on his church activities.  Mrs Kenny’s is limited to one outing a week with her sisters.  (I do take into account that a woman in her sixties who has the care of small children is not going to have a lot of spare time.)  Mrs Kenny takes the children to Brisbane so that they can see their mother or so that she can visit her own daughter, and this is undertaken without consultation with Mr Kenny.  Mr Kenny does not accompany her on these trips.

I asked Mrs Kenny about Christmas day, as that would be an example of a shared activity within the household.  Her description of it was quite bleak.  She described Mr Kenny as not bothering to get up to open presents with the children.  He did not join them at the table for the Christmas dinner that she had prepared. 

In referring to his habit of always eating separately, she pointed out that he has a habit of eating in front of the television, and she does not want the children to eat that way.  Meals are taken separately.

With regard to other matters that fall under the heading of social aspects, the question of how people would perceive Mr and Mrs Kenny should be addressed.  It does not seem that they see the need to speak about these issues widely.  They implied that they regarded the question of whether they were married or not as their own business.  I formed the impression that in particular Mr Kenny valued his privacy.  I noted that Mrs Kenny said that her youngest sister knew, and I took from that remark, that perhaps the others did not.  Nevertheless Mr Kenny has spoken of the issues that he was having with Centrelink, (that is as related to the assessment of his marital status) with the Catholic priest Fr J Hogan.  Fr Hogan signed a statement confirming that although separated Mr and Mrs Kenny have agreed to remain in the family home to provide a stable environment for the grandchildren (exhibit R3)

I accept Mr and Mrs Kenny’s evidence that there are no social interactions between them and I considered that this strongly pointed away from the existence of a relationship like a marriage.  I took into account in coming to this conclusion that Mr Kenny provides some role model to Mrs Kenny’s grandchildren and does undertake some activities in connection with them and the furthering of their religious education.   I refer to this again below.

(d)any sexual relationship between the people.   I accept Mr and Mrs Kenny’s evidence that they have no sexual relationship.  I accept their evidence that Mrs Kenny has a separate bedroom where she sleeps with her youngest grandchild, Dylan. 

(e)nature of commitment taking into account such matters as  the matters as the length of the relationship, and support for each other.   I accept that the relationship here is of some complexity and underlying it is the fact that these people have been married and have taken no steps to legally sever that relationship.  But the evidence of both is that the marriage has broken down.  On the evidence of ownership of assets (effectively there are none) it is easier to accept that Mrs Kenny is prevented from moving to other accommodation, given her lack of assets and the costs of raising two children, a matter for which she no doubt had not planned.

SHOULD MR AND MRS KENNY BE TAKEN AS LVING SEPARATELY AND APART?

24.     I accept Mrs Kenny’s evidence that until recently she had held the belief that filing for a divorce would cost her money and this was her reason for not seeking a divorce.  Mr Kenny’s reasons are different, as he said that he does not wish to divorce as it is against his religious beliefs and he sees no need for it.  He acknowledged that he had sought a divorce from his previous wife, but said that was because she wished to remarry, which he saw as quite different circumstances.  I accept both their evidence that but for the grandchildren they would not be together. 

25.     I took into account the evidence referred to by Mr Belcher that Mr and Mrs Kenny have a habit of separating and coming back together and his submission that their repeated co-habitation supports a conclusion of commitment to their relationship.  That however is not the conclusion I reach on this evidence.  I formed the view that the present arrangement is very much driven by Mrs Kenny’s needs to provide a safe and secure setting for these young children who come from a troubled background.  I was satisfied that neither person sees the arrangement they have now as lasting indefinitely.

26.     I accepted the evidence of both of these people and I agree with Mr Eaddy’s submission that apart from being under one roof there is nothing between these two people that is like a marriage.  As Mr Eaddy submitted, consortium and intimacy are quite absent.  Their language (which I took from the evidence of each of them) is that of looking after children, not looking after each other, as would be expected if they were members of a couple.  Mr Kenny said that if the children were not in a stable environment they could become ‘feral’.  He said he would do as much as he is doing now for anyone who needed help.  That is likely taking matters a bit far, but given his nature, their past, and the dire straits that Mrs Kenny finds herself in with regard to accommodation, his actions are understandable.

27.     Having taken all matters into account, I return to the words in Pelka cited above:

… The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’ will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.

28.     Clearly Mr Kenny’s case is such a case as the decision making within Centrelink in more recent years on this case attests, the decision about what rate to apply having presented a challenge on more than one occasion.  I was satisfied that the correct or preferable decision here is that Mr Kenny is not living as a member of a couple within the meaning of s4(3) of the Act and his entitlements should be assessed accordingly.

DECISION

29.     The Tribunal sets aside the decision under review namely a decision dated 7 December 2005 to pay the applicant at the married rate and substitutes the decision that Mr Kenny should be assessed at the single rate in respect of his entitlements because he is not a member of a couple. 

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:         J Lauriston

(for) Legal Research Officer

Date/s of Hearing  28 July 2006, 31 July 2006
Date of Decision  31 July 2006
Date of Written Reasons          22 August 2006
For the Applicant  Mr D Eaddy, Solicitor
For the Respondent                  Mr M Belcher, Solicitor