McQueeney; Secretary, Department of Family and Community Services
[2004] AATA 831
•6 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 831
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1210
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Applicant
And
LEANNE McQUEENEY
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date6 August 2004
PlaceSydney
Decision The decision under review is affirmed. ………….............................
Ms N Bell
Senior Member
SOCIAL SECURITY – Parenting Payment Single– Marriage-Like Relationship
Social Security Act 1991, s4
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
6 August 2004 Ms N Bell, Senior Member 1. This is an application for review by the Secretary, Department of Family and Community Services (“the Applicant”) of the decision by the Social Security Appeals Tribunal on 25 June 2003 (T2), setting aside the decision of the Centrelink Delegate to cancel Ms Leanne McQueeney’s parenting payment single on the basis that she is a member of a couple.
2. The following facts are not in dispute:
·The Respondent married Mr Chris McQueeney on 25 October 1997 and they have children aged three and six.
·The Respondent claimed parenting payment single on 4 December 2000 and that payment was granted (T3). On 13 March 2002 Centrelink received a “tip off” to the effect that Mrs McQueeney was still living, in a marriage-like relationship, with Mr McQueeney (T5).
·An investigation by Centrelink ensued and included video surveillance in August 2002 (T14).
·The Respondent’s parenting payment single was cancelled on 30 August 2002 on the basis that the Respondent is not living separately and apart from Mr McQueeney (T18).
3. The legislation relevant to the question of whether a person is a member of a couple, is in section 4 of the Social Security Act 1991 (“the Act”). This section relevantly provides:
“
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;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:
• an ancestor of the person; or
• a descendant of the person; or
• a brother or sister of the person (whether of the whole blood or the part-blood).
Member of a couple - criteria for forming opinion about relationship
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.
4 (3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
4. The Tribunal documents (Exhibit TD1) disclose a number of matters arising out of investigation, which caused the Applicant to conclude that the Respondent is a member of a couple. In evidence from Mrs McQueeney, Mr McQueeney, Ms Dell Bird (Exhibit A3) and Ms Linda Geater (Exhibit A4), those matters were sought to be refuted or explained. I will deal with the evidence before me by reference to the factors as they are set out in section 4(3) of the Act.
the financial aspects of the relationship
5. The Applicant relied on the following:
·The undisputed fact that the Respondent and Mr Queeney share joint ownership of a property at Fitzroy Falls. That property is subject to a mortgage in both their names.
·The undisputed fact that the Respondent and Mr Queeney applied in December 2001 to extend their mortgage for the purpose of completing renovations on the property.
·The undisputed fact that the Respondent’s rent on a property occupied by her at Berkley is debited from a joint account held by the Respondent and Mr McQueeney with the ANZ Bank.
·The undisputed fact that both of the motor vehicles used by the Respondent and Mr McQueeney are registered in the Respondent’s name only.
·The responsibility taken by Mr McQueeney for the Respondent’s credit card payments and that Mr McQueeney, in the absence of formal child support arrangements, gives the Respondent, according to a statement made to Centrelink, a few hundred dollars per month.
·The undisputed fact that Mr McQueeney purchased some Coles/Myer shares in the Respondent’s name.
6. The evidence of the Respondent and Mr McQueeney was that the property at Fitzroy Falls was purchased in 1999, prior to the separation in 2000 with a view to renovating it and establishing a bed and breakfast business. The extension to the loan was taken out in order to finish the renovation of the property with a view to selling it and dividing the proceeds. The Respondent told the Tribunal that she signed the application for extension of the loan as requested by Mr McQueeney and did not read the document. Both the Respondent and Mr McQueeney viewed the loan extension as a step on the way to property settlement. It was also their evidence that Mr McQueeney makes all mortgage payments.
7. In relation to credit cards the Respondent’s evidence was that her ANZ Telstra Visa Card was obtained by her in 1997, well prior to her separation from Mr McQueeney and that her American Express Credit Card was obtained after the separation at a time when she needed access to funds. Both the Respondent’s and Mr McQueeney’s evidence was that the American Express Card expenses of the Respondent are initially paid by Mr McQueeney and than reimbursed to him, with the exception of child related expenses, by the Respondent.
8. The evidence of the Respondent and Mr McQueeney was that it was Mr McQueeney’s practice to put assets of his into the Respondent’s name in order to avoid action against those assets by Mr McQueeney’s former wife. This strategy was utilised in relation to the motor vehicles purchased by the Respondent and Mr McQueeney and the shares purchased by him.
9. Their evidence was that their joint bank account is linked to the mortgage on the Fitzroy Falls property and is not used by the Respondent. It was also their evidence that that both the motor vehicles and the shares were purchased well before their separation in 2000.
10. The Respondent’s and Mr McQueeney’s explanation of the method of payment of the Respondent’s rent on her house at Berkley was that direct debit payment of the rent can only be made through the ANZ Bank and the joint account is with that bank. Payments are therefore made directly from that account so that the Respondent can avoid standing in bank queues on a regular basis in order to pay her rent. The arrangement they have is that the Respondent reimburses Mr McQueeney for payments made from the joint account.
11. Mr McQueeney’s evidence was that, in the absence of formal child support arrangements, his practice is to pay money to the Respondent by meeting her credit card expenses that relate to the children. He also explained that when the Respondent’s parenting payment single was cancelled by Centrelink, he assisted her by making irregular cash payments to her. Mr McQueeney also noted that, at the time of his property settlement with his former wife, the Respondent had access to superannuation funds and made those available to Mr McQueeney in order to settle property proceedings with his ex-wife. He therefore considers payments made to Mrs McQueeney as being in the nature of repayment of a loan.
the nature of the household
12. The Applicant relied on the following evidence:
·The undisputed fact that Mr McQueeney visits the Respondent regularly and minds their children, sometimes staying overnight when the Respondent has a practical training session for her nursing degree.
·Surveillance undertaken over a period of 12 days which shows Mr McQueeney’s presence at the Berkley house on some of those days. The video evidence of that surveillance was not tendered in evidence to the Tribunal nor viewed by the Tribunal but the investigators report was made available (T14).
13. The evidence of the Respondent and Mr McQueeney was that they do not reside together and have not done so since their separation in November 2000. Their consistent evidence was that when they separated, Mr McQueeney moved out of the Fitzroy Falls property and the Respondent stayed in that property until March 2001, when she commenced to rent a house at Berkley with her two sons. Their evidence was that there was limited contact between them during that period.
14. The Respondent’s evidence was that she commenced a nursing degree course in 2001 and developed the practice of obtaining her roster for practical training sessions two weeks in advance and comparing that with Mr McQueeney’s Ambulance Service roster in order to work out which days he would be available to assist her with childcare. The Respondent’s evidence was that if her practical training keeps her out very late, Mr McQueeney will stay overnight, minding the children and sleeping either on the lounge or in the boys’ room. Her evidence was that she only sees Mr McQueeney when he is at her house in order to look after the children. Mr McQueeney’s evidence was consistent with this and he added that he keeps a couple of old ambulance service uniform shirts there for those times when he does stay overnight.
15. The Respondent was unsure of where Mr McQueeney currently lives, but Mr McQueeney’s evidence was that he continues to reside either at the Fitzroy Falls property or with a girlfriend.
16. The Respondent’s evidence was that she has no family support and relies on Mr McQueeney, and her friend Ms Bird, for assistance in caring for the children. Both the Respondent and Mr McQueeney said that he provides her with no assistance with household chores.
social aspects of the relationship
17. The Applicant relied on the following:
· The undisputed fact that the Respondent maintains contact with Mr McQueeney’s family and that the Respondent and Mr McQueeney have nominated each other as next of kin for the purpose of medical treatment and records.
18. The Respondent’s and Mr McQueeney’s evidence was that most people consider them to be separated and they do not socialise together.
19. The Respondent’s evidence was that when she goes out it is with friends from university or with her sons.
20. The Respondent’s and Mr McQueeney’s evidence was that last Christmas comprised a short visit from Mr McQueeney and the rest of the day was spent by the Respondent with her sons and Ms Bird. Mr McQueeney said he spent the morning with a girlfriend named Tracy, followed by a short visit to the Respondent’s house and then the rest of the day with another girlfriend and their son, Nicholas.
21. The Respondent’s and Mr McQueeney’s evidence was that prior to the separation, the Respondent and Mr McQueeney “did everything together”.
sexual relationship
22. The Applicant relies on the following:
· The undisputed fact that the Respondent and Mr McQueeney have had an intermittent sexual relationship since their alleged separation, as well as sexual relationships with other people.
· That the Respondent had suffered a miscarriage, following her alleged separation from Mr McQueeney, and that it was Mr McQueeney who took her to hospital for this.
23. The Respondent and Mr McQueeney do not dispute that they have had an intermittent sexual relationship since their separation and agree that the Respondent miscarried on 25 January 2002. However, the Respondent’s evidence was that Mr McQueeney was not necessarily the father of this child as she was also having relationships and sexual relations with other people.
nature of commitment to each other
24. The Applicant relied on the following:
· The undisputed fact that the Respondent and Mr McQueeney have had no discussions about divorce and that it was Mr McQueeney’s evidence that he would not bother with divorce unless it was his intention to marry again.
· That the Respondent and Mr McQueeney provide each other with companionship and emotional support.
25. Mr McQueeney’s evidence, supported by the evidence of the Respondent, was that the event prompting separation was Mr McQueeney’s affair with another woman who eventually fell pregnant to him. The Respondent’s evidence was that this made her very angry and that their relationship at the time of separation and for some time afterwards was very acrimonious. She said, however, that their relationship is now far more cooperative, with the children as a point of common concern. The Respondent referred to her previous marriage which had broken down in such a way as to result in her losing custody of her child from that marriage. She stated that it was her intention to avoid similar circumstances in relation to her estrangement from Mr McQueeney.
26. Mr McQueeney’s evidence was that his primary relationship is with Ms Bell, the woman at the centre of his separation from the Respondent. He said that he spends most of his time at Ms Bell’s house, although he does regard the Fitzroy Falls property as his home. Mr McQueeney said that he spends spare moments at work with her (she also works for the Ambulance Service) and socialises and goes on holidays with her and their son. However, he described Ms Bell as being mentally ill and their relationship as being “on again, off again”. Mr McQueeney was firm in his evidence that his relationship with the Respondent had broken down irretrievably and that they cooperate with each other only for the sake of their sons.
27. Both the Respondent and Mr McQueeney stated that they would not necessarily care for each other in the event of illness.
28. I note also the evidence of Ms Dell Bird, a close friend of the Respondent and referred to as “nana” by her sons, which supports the Respondent’s evidence. In particular, Ms Bird gave evidence of her frequent presence at the Respondent’s house and her observation that Mr Queeney is only ever there for the purpose of caring for the Respondent’s children.
29. The evidence of Ms Linda Geater, a university friend of the Respondent, also supports the Respondent’s evidence. In particular Ms Geater gave evidence of the Respondent being very tense in the presence of Mr McQueeney when she has observed them at the Respondent’s house for brief periods.
30. Both witnesses were firm in their evidence that they consider the Respondent to be a single parent.
consideration
31. In considering this application I have taken into account the matters set out in section 4(3) of the Act and to the decision of the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, in which the Court, after listing a number of matters relevant to the question of whether a married couple are living separately and apart, made the following comments:
“
In paragraph 19 of its reasons, the Tribunal made particular reference to
Tang's case, (supra) listing the ten subject matters that had been identified
in that case by counsel for the applicant as matters against which a
relationship should be evaluated. In Tang's case the Tribunal had said that
it found the list "helpful in a general way" but it did not endorse it "as
being either a necessary or an exhaustive list". I consider, with respect,
that those comments were appropriate. Each of the ten matters touches upon an important subject but they were compiled for the purpose of determining
whether the applicant in Tang's case was "a woman who (was) living with a man as his wife on a bona fide domestic basis although not legally married to
him". As the test to be applied in this case in whether Mrs Staunton-Smith
was living separately and apart from Mr Staunton-Smith, I would prefer to have regard to the subject matters that were mentioned in Tang's case, but to
recast them in the following fashion:
(1) What are the living, eating and sleeping arrangements in the
household between the applicant and the other party?
(2) Do the applicant and the other party have a sexual relationship?
(3) Do the applicant and the other party have a social relationship?
(4) What third parties (particularly children) are residing in the
house and what is the relationship between each third party and
the applicant and the other party?
(5) What are the financial arrangements between the applicant and the
other party? For example, are resources within the household
pooled and household expenses shared?
(6) Do the applicant and the other party hold themselves out as living
separately and apart?
(7) Do the applicant and the other party have a genuine belief that
they are living separately and apart?
(8) Does the existing relationship give rise to any moral, social or
legal rights between the applicant and the other party?
(9) Finally, what is the relationship between the applicant and the
other party and does it contain any degree of permanence?
20. It is not suggested that this list 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.
21. It should, of course, be clearly understood that no Tribunal is required,
in every case, to compile something in the nature of a checklist and then to
proceed slavishly to comment on each item in the list. The personal
circumstances of people vary substantially. The responsibility of the
Tribunal is to extract from the evidence and other material that is before it
those items of information that are properly classified as material to its
deliberations. If the Tribunal performs that task it will only address those
issues that are personal to the decision that is under review; it will then be
able to state its findings on material questions of fact with appropriate
references to the evidence or other material on which those findings were
based.” (pages 169-170)
32. The financial connections between the Respondent and Mr McQueeney appear to have commenced prior to their separation in November 2000. To some extent the Respondent has been compromised in the context of this application by Mr McQueeney’s effort to avoid action by his ex-wife and his practice of placing assets in the Respondent’s name. I note that the extension of their joint mortgage took place after the date of their separation, however, I consider their explanation of that loan extension, for the purposes of completing and then selling the Fitzroy Falls property, to be plausible. I also accept as plausible, the explanation by the Respondent and Mr McQueeney of the arrangement made for the payment of Respondent’s rent.
33. The ad hoc arrangements made by the Respondent and Mr McQueeney for the payment of child support are somewhat unorthodox but must be seen in the context of Mr McQueeney having five other children to two other women. His evidence was that only his former wife (before the Respondent) has obtained child support payments through the Child Support Agency. I do not consider the payment by Mr McQueeney of child related expenses incurred by the Respondent on her credit card to be indicative of a continuing marriage like relationship. Nor do I consider it significant that Mr McQueeney made extra contributions in relation to the children, or indeed to the Respondent, during the period when the Respondent had no income after Centrelink ceased making payments to her.
34. I am satisfied, on the basis of the evidence of the Respondent, Mr McQueeney, Ms Bird and Ms Geater, that the Respondent and Mr McQueeney have not lived together since their separation in November 2000, and there is consequently no shared household to be examined. In particular Mr McQueeney’s evidence about the nature and extent of his relationship with Ms Bell and the candour of the Respondent and Mr McQueeney about their arrangements for the care of their children, including Mr McQueeney occasionally staying overnight, confirms this view for me.
35. The unviewed video tape of Mr McQueeney at the Respondent’s house, is evidence only of his presence in her house on particular days and not of his residence there.
36. I consider that Mr McQueeney’s reasonably regular contact with his children and his involvement in their care does not amount to joint parenting with the Respondent. Nor do I consider that the nomination by each on hospital records as next of kin signifies anything more than a remnant from a past relationship. The weight of the evidence is that the Respondent and Mr McQueeney do not present as a couple.
37. I consider that the intermittent sexual relationship between the Respondent and Mr McQueeney is not conclusive of a marriage like relationship and the miscarriage suffered by the Respondent is not, in light of her evidence, suggestive of anything more than that the Respondent and Mr McQueeney had sexual intercourse at or around the time of conception.
38. Mr McQueeney’s evidence of his continuing, if somewhat difficult, relationship with Ms Bell leaves little room for a committed relationship with the Respondent. I am satisfied that Mr McQueeney and the Respondent have developed, for the sake of their children, and to allow the Respondent to pursue her nursing training, a workable relationship based on childcare needs. I consider that this relationship is based on practical, rather than emotional, matters and needs, and there is no evidence before me of companionship or emotional support between them.
39. On the basis of these conclusions, and having regard to the totality of the evidence, I consider that the Respondent and Mr McQueeney were living separately and apart and not in a marriage like relationship at the time of the original decision.
40. The decision under review is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: Linda Blue....................................................
AssociateDate of Hearing 8 April 2004
Date of Decision 6 August 2004
Solicitor for the Applicant Mr George Lozynsky
Solicitor for the Respondent Ms Jackie Finlay
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