Moslemi and Secretary, Department of Social Services (Social services second review)

Moslemi and Secretary, Department of Social Services (Social services second review) [2021] AATA 2106 (2 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8587
Re:Sirous Moslemi
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member G Hallwood
Date:2 July 2021
Place:Adelaide

The decision under review is affirmed.
....................[SGND]......................
Member G Hallwood
Catchwords
SOCIAL SECURITY – Age pension – Calculation – Whether member of a couple – Marriage-like relationship – financial aspects of relationship – nature of household – social aspects of relationship – sexual relationship – nature of commitment to each other – Decision under review is affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Sperring and Secretary, Department of Employment & Workplace Relations [2007] AATA 1050.
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
VBH and Secretary, Department of Family & Community Services [2006] AATA 1.
Secondary Materials
Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991.
REASONS FOR DECISION
Member G Hallwood
2 July 2021
INTRODUCTION

This review relates to a decision of Centrelink of 24 July 2020; which was affirmed by an authorised review officer (ARO) on 17 September 2020 and then affirmed by the Administrative Appeals Tribunal, Social Services and Child Support Division (AAT1) on 5 November 2020; to treat Mr Moslemi as a member of a couple for the purpose of determining the rate of his age pension.
ISSUES
The issue to be addressed is whether Mr Moslemi was a member of a couple from 24 July 2020.
BACKGROUND
Mr Moslemi’s personal information is all sourced from his oral evidence and the Tribunal Documents[1]. The Tribunal found him to be open and honest in his presentation of his personal circumstances, and his evidence was consistent with information he has previously provided to the ARO and to AAT1.
[1] Exhibit R1.
Mr Moslemi had run successful businesses in Australia but had suffered financially during the recession of 2000, losing his business, going bankrupt and losing most of his financial assets. He took work as a courier driver. He first met Ms Moslemi in 2010. They were introduced by his uncle when Ms Moslemi, who then lived in Iran, was visiting her family in Perth. Ms Moslemi agreed to move to Adelaide and they were married on 11 September 2011. The following year their daughter was born.
After a couple of years in Adelaide, Ms Moslemi indicated to Mr Moslemi that she wanted to move to Perth to be near her family. They regularly discussed this and it was resolved with Mr Moslemi insisting they stay in Adelaide.
At around this time Mr Moslemi was diagnosed with medical conditions that affected his ability to work as a courier driver and he had to cease his employment. He has not worked in paid employment since. Ms Moslemi agreed to stay in Adelaide, and they bought a house in 2015 where they continue to live with their nine-year-old daughter. Mr Moslemi explained that he contributed a small part of the required $55,000 deposit. His portion was about $15,000 and Ms Moslemi put together the rest of the house deposit of about $40,000. Because he was unable to contribute any more of his resources to the deposit as he was not working and Ms Moslemi was, the house ownership is all in Ms Moslemi’s name.
Ms Moslemi still wished to move to Perth and, in about 2016 or 2017, Mr Moslemi agreed. He later changed his mind because he had lived in Adelaide for most of his life and was comfortable living here. This was the last straw for Ms Moslemi and she told Mr Moslemi she would leave him and move to Perth. At the end of the first week of March 2019, Ms Moslemi went to Perth for three or four weeks. While Ms Moslemi came back to Adelaide at the end of that time, Mr Moslemi says that they have lived separate lives since then, albeit they live in the same house and are still married. On 18 March 2020, both Mr and Ms Moslemi lodged ‘Relationship details – Separated under one roof’ forms advising they had separated on 8 March 2019[2]. It was these forms that triggered the decision which is the subject of this review.
[2] T7, page 87.
Mr Moslemi said that he expects that Ms Moslemi will sell the house and move to Perth in the next couple of months as she has been seeking employment there and has had the house repainted for sale.
RELEVANT LEGISLATION
The relevant legislation is set out in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
Section 4(2) of the Act provides:
Member of a couple - general
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…
Section 4(2) requires the Secretary to form their opinion about whether the persons are living separately having regard to the criteria mentioned in subsection 4(3) of the Act:
Member of a couple - criteria for forming opinion about relationship
3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, or in a de facto relationship with, each other; and
ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
iii)the basis on which the people make plans for, or engage in, joint social activities;
d)    any sexual relationship between the people;
e)    the nature of the people's commitment to each other, including:
i)the length of the relationship; and
ii)the nature of any companionship and emotional support that the people provide to each other,· and
iii)whether the people consider that the relationship is likely to continue indefinitely; and
iv)whether the people see their relationship as a marriage-like relationship or a de facto relationship.
The decision, whether to constitute the other person’s income when calculating an age pension, involves the Secretary distilling to a level of satisfaction a complexity of human interactions and relationships that identify whether people are members of a couple. The Tribunal as the decision maker in this instance, standing in the shoes of the Secretary, is required to consider and weigh factors in favour with factors against a marriage-like relationship based on the total picture, bearing in mind that, because marriages are different in every household and in every community, a marriage-like relationship is not identified by any one of the factors from s4(3) on their own, or indeed only those factors.
In VBH and Secretary, Department of Family & Community Services[3], the Tribunal stated:
The s 4 (3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.
[3] [2006] AATA 1 at [94].
In Sperring and Secretary, Department of Employment & Workplace Relations[4], the Tribunal stated:
... being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.[5]
[4][2007] AATA 1050 at [70].
[5]
In Staunton-Smith v Secretary, Department of Social Security[6], the Federal Court of Australia stated:
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.
... it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.
[6] (1991) 32 FCR 164 at [170] and [173]
In order to reach a decision, the Tribunal has considered the legislated criteria contained in section 4(3) of the Act and weighed each of these. Then the Tribunal has considered how evidence related to these criteria and the rest of the evidence provides an overall picture of the relationship between the Moslemis to determine whether Mr Moslemi was still a member of a couple from 24 July 2020.
CONSIDERATION
Financial aspects of the relationship
The house in which the Moslemis live is solely in Ms Moslemi’s name. Ms Moslemi pays the mortgage, utilities and council rates. Mr Moslemi provided what he calls a small portion of the deposit for the home and a small amount toward renovations. After the breakdown of their relationship, Mr Moslemi stated that he paid rent to Ms Moslemi in an amount of $150 a week over a period of eight weeks but found he was unable to afford to keep up these payments and was paid back by Ms Moslemi. Mr Moslemi told the Tribunal that he had agreed that Ms Moslemi would receive the full proceeds from the sale of the house when she decided to sell it.
Mr Moslemi and Ms Moslemi each own and maintain their own cars, they have their own bank accounts, no joint debts or insurances. Mr Moslemi has no superannuation.
Ms Moslemi bought and owns most of the contents of the house including furniture, television and chattels.
Mr Moslemi says that he will sometimes buy groceries and items from the chemist for Ms Moslemi but that she transfers money into his bank account for these items.
Mr Moslemi buys food and items for their daughter as well as paying for his food and other requirements. Mr Moslemi takes responsibility for much of the care of their daughter during the day and school holidays including financial responsibility for school lunches, recess and snacks.
The Moslemis still have a joint Medicare card.
Mr Moslemi pays the internet and telephone bills.
While almost all of the financial aspects of the Moslemi’s relationship appears to be separate, the Moslemis still benefit from the joint use of resources of a couple living together and bringing up their child. There are strong indicators of mutual support in the way Mr Moslemi describes their financial relationship, including the support for their daughter and their willingness to accommodate each other’s financial needs. Mr Moslemi’s need for free or low-cost rent has been accommodated by Ms Moslemi. Mr Moslemi’s unpaid role at home with their daughter also militates toward Mr Moslemi and Ms Moslemi being a couple.
The nature of the household
It was apparent from the way Mr Moslemi spoke that he gets enormous pleasure from caring for his daughter. When Ms Moslemi is at work, he he cares for his daughter by making her meals, taking her to and from school and to extracurricular activities . When Ms Moslemi is at home, she also assists in the care of their daughter. Mr Moslemi told the Tribunal that though their daughter knows that they are separated, and that she will be moving to Perth with her mother, their daughter still asks and expects that he will be moving with them.
The Moslemi’s home is laid out with a central living area (which includes the lounge room and kitchen) and two bedroom wings – one with two bedrooms and a bathroom where Mr Moslemi sleeps, and the other wing with three bedrooms and a bathroom where Ms Moslemi and their daughter sleeps.
The Moslemis both use the common areas, although Mr Moslemi says that Ms Moslemi rarely uses the common areas while he is using them because of the hours she works as a blood nurse and also because she spends more time in her bedroom. Mr Moslemi more often than not uses his laptop computer in the common area. Mr Moslemi sketched out a rough drawing of his home at the hearing which was not entered into evidence and his oral description was adequate to understand the layout.
While not explored in depth at the hearing, Mr Moslemi has previously stated to the AAT1 that he shares household duties with Ms Moslemi, although Ms Moslemi does more of the cleaning than Mr Moslemi and he does no gardening. Mr Moslemi puts out the rubbish for the house.[7] Mr Moslemi told the Tribunal that he makes the school lunches for his daughter and usually evening meals. Mr Moslemi also stated that he buys the groceries for the household and items from the chemist, albeit that Ms Moslemi pays for her portion. Mr Moslemi stated that it would not make much sense if he were to be in the shop and not buy the groceries and other items Ms Moslemi required.
[7] T2, p 8
In Milovanovic and Secretary, Department of Employment and Workplace[8], the Tribunal stated:
Regarding the nature of the household, the major factor is the son Stefan. Both Mr and Mrs Milovanovic stated that their reason for staying under the one roof was to care for him until he was old enough to live independently of them. While one would not want to lay down a rule that joint care of a child automatically disqualifies a person from being regarded as anything other than a couple for the purposes of the Act, there was evidence in the present case that there was a significant degree of dependence by Mrs Milovanovic on the continued existence of the relationship, and especially its financial aspects, in caring for their son. What was said by the Tribunal in Re Anderson and Secretary, Department of Social Security [1993] AATA 172; (1993) 31 ALO 155, would seem to apply to the present case. In that case the Tribunal considered a case involving the care of two children, and where "any interpersonal and mutual seeking of consortium and intimacy was entirely dead."
[8] 2006] AATA 930.
The Moslemi’s joint and shared care for their daughter, together with shared common areas and shared housework, weighs in favour of a finding that Mr Moslemi is a member of a couple.
Social aspects of the relationship
Mr Moslemi told the Tribunal that in July 2020 many of his and Ms Moslemi’s friends and family were unaware of their separation. He said that for the sake of their daughter, who was also unaware at that time, they had not let many people know. Mr Moslemi said that he also held out some hope that they may reconcile. They continued to be invited to functions by family and friends, which they would attend and which slowly lessened in regularity. The Moslemis now attend almost no events together but did at the time of the AAT1 decision which is the subject of this review.
In evidence to AAT1 in November 2020, Mr Moslemi stated that neither he nor Ms Moslemi had told their daughter’s school that their marriage was over.[9]
[9] T2, p 8.
Now that their daughter is aware of their separation, Mr Moslemi believes the Moslemis’ friends and family, as well as others they interact with, are aware their relationship has ended. Mr Moslemi described a gradual announcement of their separation, which allowed a continuing perception with many that they still had an ongoing marriage was aimed at being truthful with their friends and family while protecting their daughter, respecting their culture, and reflecting the hope Mr Moslemi still held to turn the relationship around.
The Moslemis now have their own friends they socialise with and do not socialise together. It is rare that they attend any events that the other attends.
The Tribunal is satisfied that at the time of the decision being reviewed there was a level of socialisation that still represented the Moslemi’s relationship to many friends and family as one of a married couple. This is balanced by what is a reasonable explanation as to why the relationship was presented that way, to protect their daughter and respect their culture while gently increasing the circle of friends and family that were aware of their break-up.
On balance, and particularly because the school was unaware and Mr Moslemi still held out some hope of reconciliation at the time of the decision being reviewed, this criterion slightly weighs toward Mr Moslemi being a member of a couple at the time of the decision.
Sexual relationship
The Secretary does not dispute Mr Moslemi’s evidence, which the Tribunal accepts, that he and Ms Moslemi have not had a sexual relationship since they broke up.[10] Mr Moslemi told the Tribunal that they broke up in early March 2019.
[10] T2, p 9.
Nature of the commitment to each other
Mr and Ms Moslemi met in 2010 and married on 11 September 2011. Their daughter was born in July 2012 and they bought a house in February 2015.
Mr Moslemi’s evidence was that before they decided to marry, he an Ms Moslemi discussed his desire to remain in Adelaide and his concern that she would wish to be close to her family in Perth. Over time this has proven to be the catalyst for arguments between them with both Ms Moslemi and Mr Moslemi capitulating and then changing their minds.
It is clear to the Tribunal from the care Mr and Ms Moslemi provide to each other that they continue to share a level of companionship and provide emotional support for each other. Mr Moslemi described the care and support Ms Moslemi provided to him when he was unwell, and he also described feeling sad when Ms Moslemi had failed to seek his support when she attended day surgery recently.
The Moslemis are still legally married. Despite discussions, neither have made any serious attempts to divorce. Mr Moslemi indicated that the cost of divorce was a consideration for him, although he had offered to pay half of a reasonable amount towards a divorce. Mr Moslemi stated that he had no intention of remarrying so a divorce would only be of consequence should Ms Moslemi wish to remarry.
Mr Moslemi and Ms Moslemi still live in the same house. Their bedrooms are in different wings and they share common kitchen and living facilities. Mr Moslemi has been offered low rent accommodation by one of his friends but he prefers to live in the same house as his daughter and also has no difficulty living under the same roof with Ms Moslemi who he still has a good relationship with.
Mr Moslemi says that neither he nor Ms Moslemi consider that the relationship is marriage-like or that it will continue indefinitely. Mr Moslemi does believe that a number of their friends and family may have thought their marital relationship was continuing at the time of the decision which is before the Tribunal for review.

The Moslemis have known there was the potential for conflict as a result of Ms Moslemi having her family in Perth and Mr Moslemi having his roots in Adelaide. They had weathered storms around this issue since their marriage in 2011, it seems in part because of their joint commitment to their daughter, and in part because of their mutual emotional bond. On 24 July 2020, when the initial decision was made, which became the subject of review at AAT1 level, a year and four months after they had decided to separate, the Moslemis were still emotionally committed enough to: live under the same roof – which they still do; remain married – which they still are; support each other in illness; support each other as parents of a child – which they still do; and, withheld the information from many that they had decided to live independent lives.
The Tribunal is satisfied that the Moslemis had a commitment to each other that went beyond one based purely on their relationship to their daughter at the time of the decision, which appears to the Tribunal as enduring in nature. This criterion weighs moderately in favour of Mr Moslemi being a member of a couple at the time of the decision.
Overall picture of the relationship
Mr Moslemi and Ms Moslemi have been married since 2011, remain married and continue to live under the same roof. From before they were married, and before Ms Moslemi came to live in Australia, there was discussion between them about Ms Moslemi being drawn to live closer to her family in Perth, and Mr Moslemi wishing to remain in Adelaide. They subsequently had a daughter and bought a house in Adelaide.
They both contribute in different ways to their household and to the raising of their daughter. Ms Moslemi, it seems from Mr Moslemi’s oral evidence, keeps more to herself in their house than he does, but they continue to care for each other with Ms Moslemi assisting Mr Moslemi when he is ill, and Mr Moslemi buying groceries and chemist items for Ms Moslemi.
It is obvious to the Tribunal that Mr and Ms Moslemi have announced to more people, including their daughter, that their marriage has broken down, and Mr Moslemi says that Ms Moslemi’s move to Perth is now imminent. He believes at this stage that he will either stay in Adelaide or move to Melbourne.
At the time of the decision, the Tribunal is satisfied that the Moslemi’s financial relationship was one that provided the mutual benefits of a couple. They lived in the same house and mutually cared for their daughter and did the housework, many of their friends, family and their daughter’s school believed that they were still a couple, and they continued to care for each other.
There is little in the way of evidence that there was a permanent breakdown in the Moslemi’s relationship at the time of the decision under review.
For these reasons, the Tribunal is satisfied that Mr Moslemi was a member of a couple with Ms Moslemi.
As Mr Moslemi has been found to be a member of a couple, the Tribunal must also consider whether there is a special reason not to treat Mr Moslemi as a member of a couple under s24 of the Act.
S4(6) of the Act states:
(6) A person is not a member of a couple if a determination under section 24 is in force in relation to the person.
S24(2) of the Act states:
(2) Where:
(a) a person has a relationship with another person, whether of the same sex or a different sex (the partner); and
(b) the person is not legally married to the partner; and
(c) the relationship between the person and the partner is a de facto relationship; and
(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
The term 'special reason' must be interpreted in the context and consistent with the scope and purpose of the Act. That context and purpose is set out in the Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991, which relevantly provided (at 17):
...there is justification in paying a higher rate to an unpartnered person than to a member of a couple if both members of the couple are living together. This justification is based on the premise that the unpartnered person does not enjoy the economies of shared living costs as does the member of a couple in those circumstances. If the economies of scale are not available to the member of the couple because, for example, of the illness of one or both members of the couple, then each would face similar living costs as an unpartnered person.
There is evidence that at the time of decision both Mr Moslemi and Ms Moslemi contributed financially to the household. Mr Moslemi paid for food for his daughter and himself, for internet and telephone services, and provided financial savings in what would have been pre- and afterschool care had he not lived in the house. Mrs Moslemi paid for the majority of other bills.
Had they not been partnered, at least from a financial perspective, the Moslemis would not have enjoyed the convenience of shared living costs that they did and continue to enjoy. For these reasons, the Tribunal does not choose to exercise the discretion to find that Mr Moslemi is not to be treated as a member of a couple for the purposes of this Act.
DECISION
For the above reasons, the Tribunal affirms the decision under review.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

……………[SGND]…………………
Associate
Dated: 28 June 2021

Date of hearing: 1 July 2021

Applicant: Self-represented

Advocate for the Respondent: Riley Calaby, Services Australia

[2021] AATA 2106

2 July 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	1 July 2021
Applicant:	Self-represented
Advocate for the Respondent:	Riley Calaby, Services Australia