Micallef and Secretary, Department of Family and Community Services

[2004] AATA 485

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 485

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q03/776

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANK MICALLEF

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMINITY SERIVCES

Respondent

DECISION

Tribunal Dr E K Christie, Member

Date14 May 2004

PlaceBrisbane

Decision The decision under review is affirmed.  This means Mr Micallef's application for review is unsuccessful.

.....................(Sgd).......................

E K Christie

Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – rate of pension – whether applicant in a marriage-like relationship – separated but living under one roof - financial ties – significant sharing of responsibility for caring and supporting children of the marriage – significant commitment to each other - member of a couple – pension payable at the married rate in the relevant period

Social Security Act 1991 ss 4(2) and 4(3)

Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615
Department of Defence v Fox (1997) 24 AAR 171
Re Anderson and Department of Social Security (1993) 31 ALD 155
Briginshaw v Briginshaw (1938) 60 CLR 336
In the Marriage of Pavey (1976) 25 FLR 450

REASONS FOR DECISION

14 May 2004  Dr E K Christie, Member    

1.      This is an application by Frank Micallef to review a decision of the Social Security Appeals Tribunal (“the SSAT”), dated 12 August 2003, that Mr Micallef was entitled to receive disability support pension (“DSP”) payments at the married rate - and not the single rate - over the period 17 April 2003 to 4 September 2003 (“the relevant period”).

2.      In reaching its decision, the SSAT concluded (at T2 Folio 10):

“20. The Tribunal accepted that changes occurred in Mr and Mrs Micallef’s marriage around March 2003, when after resuming cohabitation the parties had separate bedrooms and significantly reduced their interaction. However, the Tribunal considered that some of the ‘essential qualities of a common life’, specified in the social security context by subsection 4(3), remained. In particular, as detailed at paragraph 14 above, the parties’ financial affairs remained intermingled by virtue of their joint property ownership and Mr Micallef exhibited significant commitment to his wife by moving residence in order to care for her. Further, Mr and Mrs Micallef continue to jointly provide care and support for their children. On balance, the Tribunal is not satisfied that the relationship is such that it can be said that Mr and Mrs Micallef are living separately and apart within subsection 4(2)(a) of the Act.”

3.      At the hearing the applicant, Frank Micallef, represented himself.  Ms H Wallis-Dunn, a Departmental Advocate, represented the respondent.

4. At the hearing, the Tribunal had all evidence before it, documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the “T” documents (Exhibit 1).

Issues to be Decided

5.      The only issue for the Tribunal to decide is whether Frank Micallef and Angela Micallef were in a marriage like relationship during the relevant period, 17 April 2003 to 4 September 2003.

Facts

6.      The SSAT made the following findings of fact based on the evidence before it:

“(i)Frank Micallef and Angela Micallef were married in 1994 and have four children.

(ii)In February 2003 Angela Micallef left the family home at Ebenezer with the four children and moved to a refuge.

(iii)In March 2003, Angela Micallef rented a three-bedroom property at Tweed Heads.

(iv)      Prior to Easter 2003, Frank Micallef moved into these premises.

(v)They jointly own the Ebenezer property and contribute to the mortgage repayments and rates.  They share the rent of the Tweed Head’s premises.

(vi)They share the care of the four children.

(vii)There is no social interaction between Mr and Mrs Micallef.

(viii)There is no sexual relationship between them.

(ix)Frank Micallef provides considerable personal care for Angela Micallef.

(x)They consider the relationship not to be marriage-like.” (T2 Folios 7, 8)

Evidence of Frank Micallef

7.      Mr Micallef gave the following responses to each of the above findings of fact made by the SSAT:

(i)He agreed with these findings.  In 2003, their children were aged 9, 7, 5 and 3.  Their oldest child had an intellectual disability.  In addition, his wife received the DSP for chronic asthma and that she also suffered from osteoporosis as a consequence of the steroid medication taken by her. He was the carer of his wife during the relevant period and received the DSP with carer’s supplement.

(ii)       He acknowledged this finding of fact as correct.

(iii)      He acknowledged this finding of fact, but was unsure of the exact date.

(iv)      He acknowledged this finding of fact.

(v)He acknowledged that the mortgage of the Ebenezer property was in both names and that repayments were made by them both.  He said that he, alone, paid the rates. Rent payments, whilst living at the Tweed Heads flat, were paid by them both.

(vi)They shared the care of their four children, separately, on a half-week basis, that is, he or Angela solely looked after all the children for 3-4 days in “half week blocks”. There was some variation in the sharing arrangements whenever the weather triggered off an asthma attack in Mrs Micallef and she became unwell.

(vii)     Mr Micallef acknowledged these findings of fact as correct.

(viii)     Mr Micallef acknowledged these findings of fact as correct.

(ix)He disagreed that he provided considerable personal care to Angela Micallef.  He stated that he only provided care when she was unwell, or if she had an asthma attack.  He said that during the relevant period, his wife was hospitalised for about 7 to 10 days in July 2003.

(x)       He disagreed with this finding of fact.

8.      Mr Micallef gave the following responses in relation to the statutory criteria for a marriage-like relationship:

(a)He could not sell the 10-hectare property at Ebenezer because it was on the Bremer Flood Plain. In addition, he stated that there was no pooling of financial resources between Angela Micallef and himself.  Both he and Angela Micallef purchased food separately, for their children for each “half week block” when it was their responsibility to care for the children.

(b)In accordance with the SSAT findings of fact, the nature of their household was one in which he and Angela Micallef took sole responsibility to care for their children for each “half week block” save for circumstances where one of them was ill.  In this situation, the other person took responsibility for care.  Mr Micallef said that he had a separate bedroom and it was his responsibility to keep this room clean.  He said that both he and Angela Micallef cleaned up the Tweeds Heads flat.

(c)Mr Micallef said that he and his wife had not been separated for 12 months.  They did not engage in social activities together.

(d)Mr Micallef described his main commitment was to care for his wife when she was unwell and to care for his children when it was his turn to share the responsibility each week.  Mr Micallef said that whilst he and Mrs Micallef had lived together as a married couple at the Ebenezer property, they had lived separately in the Tweed Heads flat.  He said that during the period of the week Angela Micallef cared for their children, he “could do as he wished” provided Angela was well and there was no need for him to “step in” and to be her carer.

9.      Mr Micallef gave the following responses to questions asked of him during cross-examination:

(a)The rent repayment arrangements for the Tweed Heads flat were such that both he and Angela Micallef paid half of the rent amount.  He gave his half of the rent payment to Angela and she then paid the real estate agent.

(b)He was aware, within three weeks of moving to the Tweed Heads flat there was no hope of a reconciliation with Angela.  However, he could not point to any direct evidence to corroborate this statement.  Instead, he relied on a comment that a friend was aware that there was no chance of reconciliation.

(c)He had moved to the Ebenezer home in September 2003 and conceded that his motivation may have been to get a higher rate of pension.

(d)He stated that they had been separated for 12 months.

(e)His social activities at Tweed Heads revolved around going fishing with friends.  Whilst he had taken Angela Micallef shopping “a couple of times”, they did not socialise together.  In addition, whilst he had taken their children to friends’ homes on social outings, he did not take Angela with them on these occasions.

(f)Mr Micallef was referred to a visa credit card held by Angela.  He acknowledged that they could both operate the card.  However, the situation was that he had not operated the card after 3 February 2003, that is before the start of the relevant period.  A document from the ANZ Bank dated 27 April 2004 and sent to Mrs Micallef at her Tweed Heads address confirmed that the visa card account was closed on 10 April 2003, with the last purchase on the account being made on 24 January 2003.

The Law

10.     A person is a member of a couple for the purposes of the Social Security Act 1991 (“the Act”) if that person meets the requirements of subsection 4(2) of the Act. For this application for review, subsection 4(2)(b)(iii) is relevant:

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

…

(b)       all of the following conditions are met:

…

(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”  [Tribunal emphasis]

11. Subsection 4 of the Act sets out the matters to be considered when forming an opinion as to whether a person is in a marriage-like relationship. It provides:

“(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 place 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.

(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.”

12. Under subsection 4(3) of the Act, in forming an opinion about the relationship between two people for the purposes of sub-paragraph 4(2)(b)(iii) of the Act, the Secretary is required to “have regard to all of the circumstances of the relationship”. The Act then particularises specific matters. The phrase “have regard to” has been considered judicially on many occasions:

§It requires [the decision-maker] to take those matters into account and give weight to them as a fundamental element in making his recommendation: per Gibbs CJ in Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333;

§The mere assertion that [the decision-maker] had acted would not be conclusive if it were demonstrated that regard had not been had to those matters in any real sense: per Gummow J in Queensland Medical Laboratory v Blewett (1988) 84 ALR 615; and

§There would be a failure by [the decision-maker] to have regard to matters nominated in the statue if the regard was not adequate or not sufficient:  per O’Loughlin J in Department of Defence v Fox (1997) 24 AAR 171.

Contentions and Submissions of the Parties

13.     Ms Wallis-Dunn submitted that there were significant aspects of the financial aspects of the relationship. They jointly owned and held title to a property at Ebenezer during the relevant period.  The mortgage repayments for this property, together with the rent repayments for the Tweed Heads flat that they both made were major financial commitments they shared. Furthermore, they shared legal obligations through the title of the Ebenezer house and the credit card.

14.     In addition, both Frank and Angela Micallef shared expenses and the responsibility for caring for their four children.  Ms Wallis-Dunn acknowledged that their caring arrangements for their children represented an arrangement which constituted joint responsibility.  Ms Wallis-Dunn referred to the following reason made by the SSAT as representing a particularly significant reason:

“The Tribunal was told that because both suffered disabilities, neither was capable of dealing with the demands of the children on a full-time basis and, therefore, they were each attempting to do their best for the children by the current arrangement.” (T2 Folio 5)

15.     Accordingly, Ms Wallis-Dunn contended that the basis for sharing of the responsibility for the housework together with the joint responsibility for providing care or support for the children was consistent with meeting the statutory criteria that related to the “Nature of the Household”.

16.     Ms Wallis-Dunn acknowledged that the absence of any sexual relationship was not in dispute.

17.     Ms Wallis-Dunn contended that there was no real evidence before the Tribunal to corroborate whether Frank and Angela Micallef were separated during the relevant period. Rather, the only information before the Tribunal was a statement by Mr Micallef that friends were aware that they were separated.  Furthermore, Ms Wallis-Dunn submitted some of the information before the Tribunal was uncertain and/or contradictory.

18.     In terms of the “Nature of Commitment” criteria, Ms Wallis-Dunn submitted that the support given by Frank Micallef to Angela as a carer, during the relevant period, was “fairly strong”.

19.     Mr Micallef challenged the respondent’s submission that any use of financial resources by himself and Angela, to jointly repay their mortgage, to pay the rent for the Tweed Heads flat, together with their separate contributions to pay for food for their children represented a “significant pooling” of financial resources.

20.     Mr Micallef submitted that he had taken on the role of Angela’s carer, because it was in the best interests of their children.  He contended that the act of caring for children did not mean marriage to a person.

Consideration of the Issues

21. The Tribunal has applied the legal principles set out in paragraph (ii) to its assessment of facts in this application for review. The Tribunal has taken the matters specified in subsection 4(3)(a)(b)(e) into account, but the Tribunal has also had regard to all of the other matters specified in subsection 4(3). The Tribunal has done so on the basis of all the material before it.

Financial Aspects of the Relationship

22.     Frank and Angela Micallef both hold legal title to a home at Ebenezer.  They both contribute to its mortgage repayments of $110 (T2 Folio 6); in these circumstances, by each making equal contributions to mortgage repayments, their legal obligations to one another in terms of home ownership is recognised.  Mr Micallef also pays the rates for the Ebenezer property.  In addition, Mr Micallef paid half the rent for the Tweed Heads flat during the relevant period.

23.     Mr Micallef received around $460 per fortnight in social security entitlements during the relevant period (T25 Folio 44).  Given the total outlays Mr Micallef made during the relevant period for the mortgage repayments and rates for the Ebenezer property, as well as rent payments for the Tweed Heads flat, relative to the amount of his social security entitlements, the Tribunal can make no other conclusion than to find that Mr Micallef made a significant contribution to the ongoing major financial commitments of Frank and Angela Micallef during the relevant period - including commitments associated with their legal obligations of home ownership.

Nature of the Household

24.     The Tribunal recognises that Frank and Angela Micallef are both on the DSP.  As a consequence neither are capable of dealing with the demands of their children on a full-time basis, during the relevant period.  As a result, they relied on an arrangement where they each took sole responsibility for the care of their four children on the basis of a “half week block” - subject to the other not being ill or hospitalised. In addition, Mr Micallef’s evidence was that he had a separate bedroom in the Tweed Heads flat during the relevant period and that both he and Angela cleaned the flat.

25.     The Tribunal concludes that, in these circumstances, there has been a considerable and significant sharing of responsibility for providing care and support for their four children and the provision of a residence that provided the basis for the children to enjoy a more stable environment to enjoy the benefits of a family relationship with their father, Frank Micallef.  The Tribunal used a similar approach in its reasoning and consideration of issues in evaluating the statutory criteria in Re Anderson and Department of Social Security (1993) 31 ALD 155.

Nature of Commitment

26.     The Tribunal considers that Mr Micallef exhibited significant commitment to Angela by moving to the Tweed Heads flat and, in so doing, providing care for her.

27.     In addition, Mr Micallef's continual commitment towards their children by providing care and support for them whilst living in the Tweed Heads flat.  In this regard, the Tribunal considers that the decision of the Full Family Court in, In the Marriage of Pavey (1976) 25 FLR 450 is relevant where the Full Court stated (at 455):

“The nurture and support of the children of the marriage [w]as a constituent element of the marital relationship.”

28.     Accordingly, the Tribunal concludes that during the relevant period, Mr Micallef made a significant commitment to the support of Angela Micallef and their children in a manner consistent with the reasoning of the Full Family Court in Pavey.

Other Statutory Criteria

29.     It was not in dispute that no sexual relationship existed between Frank and Angela Micallef during the relevant period.  In terms of the social aspects of the relationship the Tribunal concludes that the evidence of Mr Micallef in this regard can only be described as “indefinite testimony” or “inexact proof”.  Accordingly, the Tribunal cannot be reasonably satisfied that his evidence on this point meets the legal standard of proof that must be adhered to by the Tribunal:  see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, 362.

30.     For all of the above reasons and in particular, based on “The Financial Aspects of the Relationship”, “The Nature of the Household” and “The Nature of the Commitment” the Tribunal finds that during the relevant period 17 April 2003 to 4 September 2003, Frank and Angela Micallef were in a marriage-like relationship, as defined by the Social Security Act 1991.  As a result, Mr Micallef is not entitled to payment of social security entitlements during this period at the single rate.

31. The Tribunal has no discretion under the Act other than to apply the facts to the statutory criteria that prescribe the legal meaning of a marriage-like relationship for social security recipients. Whilst Mr Micallef may consider the outcome as harsh, the Tribunal has no alternative other than to make the decision it has made based on the facts and their application to the law.

32.     The decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:          Sarah Oliver
  Associate

Dates of Hearing  17 and 18 March 2004
Date of Decision  14 May 2004

The Applicant appeared in person
For the Respondent                  Ms Wallis-Dunn, Departmental Advocate