Lenard and Secretary, Department of Family and Community Services

[2004] AATA 83

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 83

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/656

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANNE MAREE LENARD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date2 February 2004

PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution thereof determines that
(a) Mrs Lenard is living separately and apart from Mr Lenard for a permanent or indefinite period as at 17 June 2002; and
(b) Mrs Lenard is not a member of a couple as at 17 June 2002; and
(c) Mrs Lenard is entitled to payment of parenting allowance at the single rate from 17 June 2002.  

[Sgd] Dr J D Campbell   Member

CATCHWORDS

SOCIAL SECURITY - Member of a couple - living separately and apart - circumstances of the relationship - special reason - payment of parenting payment at the single rate – decision set aside.

LEGISLATION

Social Security Act 1991, s 4(2), (3), (3A), 24

REASONS FOR DECISION

2 February 2004   Dr J D Campbell, Member                 

1.      On 17 June 2002, Centrelink determined to treat Mrs Anne Lenard as a member of a couple with Mr David Lenard, being the other member. This decision was affirmed by an authorised review officer (“ARO”) on 22 August 2002 and by the Social Security Appeals Tribunal (“SSAT”) on 1 April 2003. Mrs Lenard seeks to have the decision set aside and that parenting payment be continued to be paid at the single rate from 17 June 2002 and thereafter.

2.      Mrs Lenard was born on 14 December 1960 and married Mr Lenard on 14 January 1984.  Mr and Mrs Lenard have five children born in 1982, 1984, 1989, 1993 and 1995. Mr and Mrs Lenard and the children have resided in a three bedroom housing commission residence since 1987 with joint tenancy until 14 September 1997, at which time Mrs Lenard became the sole tenant, with Mr Lenard registered as an authorised resident.

3.      Mrs Lenard was granted a sole parent pension both in September 1987 and in May 1993 when Mr Lenard was in gaol. In September 1994, a decision was made to cancel Mrs Lenard's sole parent pension but on 25 January 1995, following a review, the Department of Social Security concluded that Mrs Lenard was not living in a marriage like relationship with Mr Lenard and her sole parent pension was reinstated. A further review was undertaken in April 1996, Mrs Lenard having given birth to a son Blake in June 1995, with the father being Mr Lenard. An assessment and recommendation at that time by a departmental social worker resulted in a continuance of the finding by the Department that Mrs Lenard and Mr Lenard were living separately and apart on a permanent basis.

4.      A further review by Centrelink was instituted in June 2002, but on this occasion Mrs Lenard was determined to be living in a marriage like relationship with Mr Lenard. Mrs Lenard's entitlement to be paid parenting allowance at the single rate ceased as at 17 June 2002. 

issues

5. In determining whether Mrs Lenard was either a member of a couple or, in the alternate, whether Mrs Lenard was living separately and apart from Mr Lenard on a permanent or indefinite basis, the Tribunal must address all the relevant material and have regard to all the circumstances of the relationship as detailed in section 4(3) of the Social Security Act1991 (“the Act”). Further, in the event that Mrs Lenard is determined to be a member of a couple, the Tribunal should consider whether any ‘special reason’ does exist, pursuant to section 24 of the Act, which would permit the Tribunal to determine that Mrs Lenard is not to be treated as a member of a couple.

finding

6. The Tribunal, having addressed and considered all the material before the Tribunal in this matter, determines that Mrs Lenard was living separately and apart from Mr Lenard on a permanent or indefinite basis as at 17 June 2002, and accordingly pursuant to section 4(2)(a) of the Act was not a member of a couple at that date. The Tribunal further finds that Mrs Lenard is entitled to parenting payment at the single rate from 17 June 2002 up to the date in late 2003 at which she was regranted such payment, following the departure of Mr Lenard from the housing commission residence on 28 October 2003.

consideration and findings

7.      The Tribunal, in addressing the material placed before it in this matter, is mindful of the following facts:

·     Mrs and Mr Lenard  were married on 14 January 1984 and have five children, aged 21, 19, 14, 10 and 8, with the last child being the consequence of an attempted but failed reconciliation in 1995;

·     The Lenards have resided at the housing commission residence in Ermington since 1987, with Mr Lenard being absent for periods spent in gaol in 1987, 1993 and 1997. Both parties were tenants of the housing commission until 14 September 1997, when Mrs Lenard became the sole tenant and Mr Lenard an authorised resident;

·     Mr Lenard, since the marriage in 1984, has experienced several episodes of imprisonment, suffered from substance abuse and is currently receiving a disability support pension;

·     Mrs Lenard sought and had issued an apprehended violence order against Mr Lenard on 30 July 2002. In this order, Mr Lenard was instructed not to engage in conduct which intimidated Mrs Lenard or other persons in the household and not to stalk Mrs Lenard, all for a period of two years;

·     Mr Lenard left the residence on 28 October 2003 and Mrs Lenard is unaware of his current address, although she believes it to be somewhere in the local area;

·     Mrs Lenard has not worked since the birth of her second child in 1985, and Mr Lenard is in receipt of a disability support pension;

·     The relationship between Mrs Lenard and Mr Lenard has been the subject of assessment and review since 1994, such assessment and review involving social worker assessment.  Until 17 June 2002, the Department considered that Mrs Lenard was living separately and apart from Mr Lenard on a permanent or indefinite basis;

·     Throughout the period, both Mrs Lenard and Mr Lenard had indicated to the various reviewers that they did not intend to seek a divorce because of religious conviction and that it was the intention of Mr Lenard to move out when he could find suitable accommodation, which he could afford.

8.      The Tribunal also notes that by the time of the hearing Mr Lenard was not a party, and hence any written material before the Tribunal in so far as he is concerned could not be further explored.

9.      In noting the documented longitudinal history of this matter and having listened to and explored Mrs Lenard's history of events, the Tribunal concludes that Mrs Lenard has detailed a consistent history of her perception and understanding of the relationship, and circumstances surrounding the relationship, that have existed and evolved over time. The Tribunal, recognising the complexities that are enshrined in any long term relationship, does not consider Mrs Lenard's story either exaggerated or understated, but rather a reflection of a deteriorated relationship, which continued to exist in part for reasons of history, habit, circumstance and/or convenience.

10. Section 4(3) of the Act details that the Tribunal is to have regard to all the circumstances of the relationship in forming an opinion of whether a person is living separately and apart from the other person on a permanent or indefinite basis. In particular, pursuant to section 4(3) of the Act, the Tribunal must address and consider the following matters:

(a)      The financial aspects of the relationship

·     In addressing this area, the Tribunal observes that Mrs Lenard is the sole tenant, with both her and Mr Lenard each paying an assessed rent to the housing commission. Each party has their own bank account, and Mrs Lenard owns all the major items of furniture. There is no pooling of financial resources, with Mr Lenard purchasing and cooking his own food. Mr Lenard contributes $10 per week maintenance for the children and a small contribution for electricity. The phone is restricted to incoming calls. Mr Lenard makes no contribution towards other family financial outgoing such as school expenses, excursions, presents and general household expenses. Mrs Lenard is debt free while she believes Mr Lenard to owe money, the sheriff having considered court action to recover debts. They do not have any joint liabilities, they do not own jointly any property or major assets, nor do they pool their resources for a major financial purchase. They do not have a car, nor does Mrs Lenard have any legal obligation in respect of Mr Lenard, and likewise Mr Lenard in respect of Mrs Lenard;

(b)      The nature of the household

·     Accommodation within the house consists of three bedrooms. Mr Lenard and the eldest son in one bedroom, with the son often sleeping elsewhere. The eldest daughter with small infant and the two younger daughters share the second bedroom, while Mrs Lenard and the younger son occupy the third bedroom. Mr Lenard keeps to his bedroom, where he watches television. Mr Lenard purchases, stores and prepares his own food for himself only, tidies his room and occasionally mows the lawn. Mrs Lenard undertakes all other purchasing, cleaning, cooking and domestic activities, including gardening, assisted in part by her children. Mr Lenard never eats with the family. Two of the children, namely Blake and Jessie, have behavioural disorders with both children relating well to David who has assisted, when available, in their management and care. Mrs Lenard stated that at the time of the telephone hearing for the SSAT, Mr Lenard had been present in the house and it was difficult for her to be frank. Mrs Lenard stated that the relationships in the household were difficult and it was Mr Lenard's verbal harassment over a long period of time that led her to take out an apprehended violence order in July 2002. Mrs Lenard also stated that Mr Lenard comes and goes as he pleases and may be absent from the house for days at a time. Mrs Lenard stated that Mr Lenard takes no part in school arrangements or teacher parent nights, nor does he holiday or spend Christmas with the family; the family, minus Mr Lenard, attending a church meal on that day. He does not give the children any pocket money, nor is he nominated as next of kin for the children at school, nor does Mrs Lenard make any special arrangements whereby he would care for the children for a period of time.

(c) Social aspects of the relationship

·     Mrs Lenard does not hold herself out as married to Mr Lenard. Indeed she holds herself out as separated. She stated that she has been legally married to David since 1984, but for religious and financial reasons neither party has sought a divorce. Mrs Lenard attends all social activities unaccompanied.  Mrs Lenard has her own circle of friends and they and her church group understand the nature of the relationship that has existed between Mrs and Mr Lenard over a long period of time. Mr Lenard never attends at church, comes and goes as he pleases and never accounts for his activities or his absences. They do not visit relatives together.  Mrs Lenard recalled that the last time they were out together in family circumstances was for Mr Lenard's mother’s funeral in 1995. Mrs Lenard stated that Mr Lenard did not attend at the hospital at the time of Blake's birth in 1995, and she never makes plans which involve him attending at family, social, school or church occasions, nor is he involved in family activities, festivities or holidays.

(d) Sexual relationships

·     Mrs Lenard reports that there has been no sexual relationship between her and Mr Lenard for nine years. She stated that she has had no other sexual relationships during this period.

(e) Commitment to each other

·     Mrs Lenard states that she feels no commitment to Mr Lenard. If he were in hospital, she would take the children to visit, but would not visit him herself. She has no regard for him and would not look after him if he were ill. Further, Mrs Lenard noted that she received more support from family and her local church than from Mr Lenard when she was assaulted during a home invasion in 1998. Mrs Lenard also stated that the relationship between them has progressively deteriorated over the years and since 1995 Mr Lenard has participated in less and less domestic/household activities to the extent that, apart from any activities associated with the two children, everything that he does is for himself. The Tribunal does note that Mr Lenard did visit his 13 year old daughter once over a five day hospitalisation period for appendicitis in 2002 and that he was nominated as next of kin on hospital records during Mrs Lenard's admission in 1995 in relation to the birth of the youngest child (from which the Tribunal draws no inference in the light of and purpose of the hospitalisation). The Tribunal also observes that Mrs and Mr Lenard have remained domiciled in the one residence for many years, albeit with absences by Mr Lenard on several occasions for periods of imprisonment. Further, the Tribunal notes the long stated assertion of both parties that it is Mr Lenard’s intention to find alternate accommodation and the failure of this to occur for a variety or reasons, namely financial and a failure by Mr Lenard to apply for housing commission accommodation, despite statements by him that he had so applied.

11.     In assessing the various elements of the relationship that have been outlined, the Tribunal again reflects upon particular environmental circumstances in which such elements have evolved. These environmental circumstances include Mr Lenard's various periods of imprisonment, his periods of gambling, his continuing substance abuse (currently on methadone program), his debts, his inability to work associated with his receipt of a disability support pension and his verbal harassment of Mrs Lenard necessitating the issue of an apprehended violence order in July 2002.

12.       The Tribunal is also mindful that the Lenards were married in 1984 and have resided in the same house since 1987 and that five children have been raised during this period. The Tribunal also notes that much has been made of Mr Lenard failing to move out of the residence despite nine years of intentions to do so and it has been asserted that his failure to do so was in part associated with his ability to assist in the management of the two younger children, both of whom suffer from behavioural disabilities. The Tribunal acknowledges that there is evidence that Mr Lenard has a good relationship with the two younger children, but the Tribunal draws no further inference other than concluding that the relationship is born of a father's influence and care for the two children.  It is probable that the nature of this relationship would exist independently of whether Mr Lenard was physically present in the domestic environment, for it is evident to the Tribunal that Mr Lenard's physical presence in the house was a variable and varied event.

13. In addressing the issue of a failure to move out, despite the expressed intention to so do over a period of nine years, it is evident to the Tribunal that there are a myriad of reasons why this has not occurred. Such reasons would include financial, convenience, habit, loss of comfort zone and provision of assistance in the care of the two younger children. The Tribunal further observes that over this period Mrs Lenard has made various accommodations in the domestic circumstances of the household to cope with Mr Lenard's continuing presence as evidenced by financial, sleeping, lease, household and social arrangements, all of which have been detailed earlier in this decision. The Tribunal further observes the issue of an apprehended violence order in July 2002, as evidence of Mr Lenard's behaviour towards Mrs Lenard, which in turn would suggest to the Tribunal that any decision to finally leave the premises would rest with Mr Lenard. Even if the Tribunal is in error with such a suggestion, it highlights that it is inappropriate to draw a particular inference that the failure to leave was associated with Mr and Mrs Lenard continuing to enjoy a dependent relationship. In so stating, the Tribunal is clearly of the opinion that Mr Lenard’s decision not to leave the residence was a consequence of multiple factors, most of which had little to do with the circumstances nominated in section 4(3) of the Act, but more to do with two people, saddled with a dysfunctional relationship, trying to cope with effective decision making in an environment beset with financial, personal and psychological issues.

14.     The Tribunal, having regard to all the circumstances, and in particular to those nominated, has formed the opinion that Mrs Lenard was living separately and apart from Mr Lenard on a permanent or indefinite basis as at 17 June 2002 and continued until Mrs Lenard was granted payment of parenting allowance at a single rate in late 2003.

15.     The Tribunal, notes that the relationship between the parties has been the subject of two reviews by the Department since 1995 and that a social worker assessment and recommendation was provided on such occasions, with the Department concluding that the parties were living separately and apart. In forming its opinion, the Tribunal was specific in undertaking a careful consideration of all the matters and analysis of particular materials pertinent to the June 2002 review. The Tribunal does note that Mrs Lenard stated that a social worker assessment was again undertaken in June 2002. If such a report was made, it was not made available to the Tribunal.  While the Tribunal draws no inference from the failure to provide such a report, if indeed one existed, the Tribunal does observe that many, if not all the circumstances in the relationship between Mr and Mrs Lenard were present and continued to exist, albeit with increasing clarity, at the time the decision was made in June 2002 to no longer recognise that Mr and Mrs Lenard as living separately and apart. For whatever reason, significant weight was placed upon Mr Lenard’s failure to leave the residence and it is the Tribunal’s view that such consideration failed to give appreciation and a balanced consideration to all the material circumstances.

summary

16. In overview the Tribunal having assessed all the material before it in this matter, concludes that the two parties are living separately and apart and pursuant to section 4(2) of the Act cannot be considered as members of a couple for the purposes of the Act. Much emphasis was placed by the Respondent on the failure of Mr Lenard to move to other accommodation over an extended period, with the inference being drawn that Mrs Lenard wished him to remain to assist in the management of the two younger children. The Tribunal has been careful to assess all the matters nominated in section 4(3) of the Act, and in so doing has concluded that the matters raised by the Respondent, while pertinent, are subject to variable construction and inferences as earlier outlined. Further the Tribunal, in view of its finding, did not consider it necessary to address section 24 of the Act..

determination

17.     The Tribunal sets aside the decision under review and in substitution thereof determines that

(a)Mrs Lenard is living separately and apart from Mr Lenard for a permanent or indefinite period as at 17 June 2002; and

(b)      Mrs Lenard is not a member of a couple as at 17 June 2002; and

(c)Mrs Lenard is entitled to payment of parenting allowance at the single rate from 17 June 2002.  

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         A.Krilis.
  Associate

Date/s of Hearing  16 December 2003
Date of Decision  2 February 2004
Representative for the Applicant    Self
Solicitor for the Respondent          Mr George Lozynsky