PAUL BEAUPEURT and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2009] AATA 214
•1 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 214
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5499
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL BEAUPEURT Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date1 April 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................[Sgd]....................
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – disability support pension – applicant married and not living separately and apart on a permanent or indefinite basis – applicant a member of a couple at relevant time – decision affirmed
Social Security Act 1991 (Cth) s 4, 94, 1064
REASONS FOR DECISION
1 April 2009 Mr R G Kenny, Member background
1. Paul Beaupeurt and Dianne Beaupeurt have been married since 16 November 1989. Mr Beaupeurt is in receipt of disability support pension, a form of income support which is payable in accordance with the terms of the Social Security Act 1991 (“the Act”). The disability support pension was paid on the basis that he was not a member of a couple. On 25 July 2008, a Centrelink officer determined that Mr and Mrs Beaupeurt were members of a couple and that Mr Beaupeurt should be paid at the rate relevant to a partnered recipient. That decision was affirmed by an authorised review officer with Centrelink on 2 October 2008. On 5 November 2008, the Social Security Appeals Tribunal (“the SSAT”) affirmed that decision.
issues and legislation
2. The qualifications for disability support pension are set out in s 94 of the Act. It is not disputed in this case that Mr Beaupeurt meets the requirements of that provision. A person’s disability support pension rate is worked out by using a pension rate calculator at the end of s 1064 of the Act. Where a person is living as a member of a couple, the person’s pension is payable at a rate lower than that for a non-partnered person.
3. In this case, the Tribunal is to determine whether Mr and Mrs Beaupeurt have been properly assessed as having been members of a couple in the sense that they were not living separately and apart. Relevant to that determination are the following provisions of the Act:
“Member of a couple—general
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) …
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) …, 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”.
mr beaupeurt’s evidence
4. Mr Beaupeurt gave the following evidence. He suffers from bi-polar disorder and asthma. He also has leukaemia which was diagnosed in 2008. He separated from his wife in 2007. At the time, they and their two daughters were living at Kotara in New South Wales. He moved to the adjacent house until their own house was sold at the end of 2007. The sum of $250,000 realised from the sale was deposited in their joint account with the Newcastle Permanent Building Society. This was done to ensure the preservation of the monies and because of his continuing health problems. After the house was sold, Mrs Beaupeurt moved to Tewantin in Queensland with her daughters. Mr Beaupeurt moved to rental premises in Merewether in New South Wales, the tenancy agreement for which was signed by both Mr and Mrs Beaupeurt. This was because Mr Beaupeurt feared he would be rejected as a tenant if the agreement was in his name only as his only income was the disability support pension. Because of difficulty meeting rental payments, Mr Beaupeurt left Merewether and, for some weeks, lived with friends in northern New South Wales.
5. In June 2008, Mrs Beaupeurt moved to Doonan in Queensland with her daughters. The male friend of her older daughter also lived there. In the tenancy agreement, he, Mrs Beaupeurt and her older daughter were nominated as tenants. Mr Beaupeurt was not nominated as a tenant but he was listed as an approved occupant. Mr Beaupeurt resided there from July 2008 for financial reasons and because he wanted to remain in contact with his daughters. He slept in a shed on the property and utilised toilet and kitchen facilities in the house when Mrs Beaupeurt was away from the house at work. He had virtually no communications with Mrs Beaupeurt and dealings with her were conducted through his daughters. He contributed to the costs of utility services and paid $120 a week for board. He was responsible for his own food and grocery purchases. He did not contribute to the telephone bill as he relied on his mobile phone.
6. While living at Doonan, Mr and Mrs Beaupeurt decided to purchase their own home in Cooroibah in Queensland. Mr Beaupeurt played no part in selecting the property except to drive by it and to relay his approval to Mrs Beaupeurt through their daughters. They used the monies in their joint account as well as a further $150,000 which they borrowed. The property was purchased in both Mr and Mrs Beaupeurt’s names as joint tenants with the mortgage also being in joint names. Mr Beaupeurt was aware that the property would vest in Mrs Beaupeurt if he predeceased her. He was comfortable with that outcome as he was sure that it would ultimately pass to his daughters.
7. At the Cooroibah property, there is a small, detached and self-contained “granny flat”. This is occupied by Mr Beaupeurt. Mrs Beaupeurt lives in the house with her younger daughter. Her other daughter no longer resides there. Mr Beaupeurt shares the costs of utilities and rates. He pays $120 per week into Mrs Beaupeurt’s bank account from which she makes the mortgage repayments. Mr Beaupeurt moved into the Cooroibah property before the others did. This was to enable Mr Beaupeurt to undertake the clearing of the land which he described as “a jungle”. He rarely enters the house although, on one occasion, he gave assistance to a friend who was carrying out some minor improvements in the house.
8. Mr Beaupeurt’s bi-polar disorder was diagnosed in 1999. It causes him to experience mood swings including depression. It also makes it difficult for him to live with other people. He is not treated for his leukaemia but undergoes monitoring every two weeks for that condition. Mr Beaupeurt’s asthma causes him to become breathless at times and he uses a Ventolin inhaler which he always has with him.
9. Mr Beaupeurt regards himself as living separately from his wife. He agreed that, in a note to Centrelink in April 2008, he had expressed the hope that he and Mrs Beaupeurt might get back together and be a family again. At that time, this prospect had prevented him from obtaining a divorce. However, he was now certain that this would not happen. He put the notion of divorce to Mrs Beaupeurt in October 2008 and she was “not happy” with the proposition. He still has not made application for divorce and described that as no longer being important. He considered it to be a procedure that was too expensive and one that he did not want his daughters to endure. There are no shared financial dealings apart from the mortgage over the Cooroibah property and the sharing of costs associated with that property. They do not engage in any social activities together and have not had a sexual relationship for several years. He recalled that they each completed a will some years ago in which each nominated the other as beneficiary. He does not know where his will is held but he has not formally revoked it. He believed that, in the event he needed assistance, for example in relation to his health problems, Mrs Beaupeurt would provide assistance to him. He said that he would do the same for her if it was required. He described her as a very good mother for their daughters.
other evidence
10. In evidence were copies of the tenancy agreements for the premises at Merewether and Doonan. The former lists both Mr and Mrs Beaupeurt as the tenants and it is signed by both of them. The latter was not signed by Mr Beaupeurt and it nominates him as an approved occupant but not a tenant.
11. Also in evidence were statements completed in August 2008 by Mr Page‑Smith and Mr Audley. They are Mr Beaupeurt’s friends who live in New South Wales and have not seen Mr Beaupeurt in his present living circumstances. They received a questionnaire from Centrelink in which they confirmed that, to their knowledge, Mr and Mrs Beaupeurt were not living in a marriage-like relationship. In reply to a request for a reason that Mr and Mrs Beaupeurt were residing at the same premises, Mr Page-Smith wrote that it was to enable Mr Beaupeurt to help support his children. Mr Audley wrote that he thought it was because of Mr Beaupeurt’s bi-polar condition and because Mrs Beaupeurt was worried that he may harm himself. As to the reasons for the separation, Mr Page-Smith wrote that they had grown apart and there was constant conflict between them. Mr Audley wrote that there were many reasons including Mr Beaupeurt’s illness.
12. A note, dated 9 April 2008, written by Mr Beaupeurt was also in evidence. He wrote that Mrs Beaupeurt was on his Merewether lease because he needed another name on it to secure it. He also wrote that he was hoping with time that he and Mrs Beaupeurt might be able to get back together and be a family again.
13. Other documents in evidence comprised Centrelink forms completed by Mr Beaupeurt and by Mrs Beaupeurt. On 30 May 2008, Mrs Beaupeurt completed a document in respect of her relationship details. At the time, she was living at Tewantin and Mr Beaupeurt was living at Merewether. Therein, she wrote that she was separated from Mr Beaupeurt. She completed a Centrelink Rent Certificate on 14 July 2008 when she was living at Doonan. Therein, she identified Mr Beaupeurt as sharing that accommodation with her, her daughters and her older daughter’s male friend since 6 June 2008 and noted that Mr Beaupeurt was paying $125 per week rent. Mr Beaupeurt also completed the same type of document on 14 July 2008. He wrote that Mrs Beaupeurt had lived there since 6 June 2008.
14. Centrelink forms entitled “Assessment of Living Arrangements”, stamped as having been received by Centrelink on 18 July 2008, were completed by Mr Beaupeurt and by Mrs Beaupeurt while they were living at Doonan. Mr Beaupeurt noted that he had a will with Mrs Beaupeurt as a beneficiary; that he paid 25% of electricity, gas and telephone bills; that he shared household tasks with the other people in the house; that he purchased his own food and goods; and that Mrs Beaupeurt would provide support to him, if possible, in relation to illness, personal crises and family disputes. Mrs Beaupeurt also noted that she had a will in which Mr Beaupeurt was a beneficiary; that Mr Beaupeurt paid 25% of electricity, gas and telephone bills; that household tasks were shared among all the people in the house; and that Mr Beaupeurt would provide support to her in relation to illness, personal crises and family disputes and, if needed, in money matters.
15. On 24 July 2008, Mr Beaupeurt completed another Centrelink form entitled “Disability Payment – Change of Marital Status: Becoming Partnered”. It was signed by him and Mrs Beaupeurt. In describing their marital status, they responded by declaring that they had become reconciled on 7 July 2008 and were not living apart.
respondent’s submission
16. Mr Hamilton submitted that Mr Beaupeurt was not living separately and apart from Mrs Beaupeurt from July 2008 and that, while some of the criteria in s 4(2) of the Act may be decided in his favour, the main factor in this case is the level of commitment displayed by each to the other. He submitted that this was demonstrated by Mr Beaupeurt’s returning from New South Wales to Queensland to share premises with Mrs Beaupeurt and the willingness of Mrs Beaupeurt to continue giving support to Mr Beaupeurt in the event of illness. He submitted that, after 20 years of marriage, many relationships undergo change and that, in this case, it was compounded by Mr Beaupeurt’s health problems, in particular, his bi-polar disorder which made him difficult to live with.
17. Mr Beaupeurt submitted that his marriage was over and that he and Mrs Beaupeurt have lived separately and apart since he moved out of the Kotara house to live in the house next door. He submitted that an absence of a sexual relationship between them and his occupation of a separate dwelling at Cooroibah confirm this. He submitted that his reasons for returning to Queensland were related to the need to be near his daughters and his difficult financial situation.
consideration
18. In determining whether or not Mr and Mrs Beaupeurt have been living separately and apart from 7 July 2008, all of the circumstances of their relationship must be considered. These include the matters referred to in s 4(3) of the Act which is set out above.
19. In relation to their financial circumstances, Mr and Mrs Beaupeurt have not maintained separate arrangements since July 2008. At that time, they continued to have a joint term deposit with Newcastle Permanent Building Society in the amount of $250,000. In July 2008, Mr Beaupeurt was sharing premises at Doonan with Mrs Beaupeurt and his daughters and making board payments and payments for utilities that he used. His financial contribution was of assistance to Mrs Beaupeurt by enabling her to meet rent commitments. Living there enabled Mr Beaupeurt to have accommodation which he was able to afford and to overcome the problems he had meeting his accommodation costs in New South Wales. Further, Mr and Mrs Beaupeurt demonstrated a clear capacity to cooperate in financial matters when they purchased their Cooroibah house, in particular as they did so as joint tenants and by taking out a joint mortgage of $150,000.
20. The nature of the household has been characterised by a degree of physical separation of Mr and Mrs Beaupeurt. At Doonan, Mr Beaupeurt slept in the shed and stayed away from the house while Mrs Beaupeurt was present. However, he utilised the facilities of the house, including the bathroom and kitchen. This was facilitated by Mrs Beaupeurt’s absence from the house due to her employment at that time. Differing accounts have been given about the sharing of household tasks at Doonan with written statements referring to a general sharing of the workload. In any event, Mr Beaupeurt assumed responsibility for garden maintenance. On moving to Cooroibah, Mr Beaupeurt was self-sufficient in his own “granny flat”. The question of sharing household tasks did not arise. However, Mr Beaupeurt retained his gardening responsibilities and, indeed, Mrs Beaupeurt delayed her move into the house while Mr Beaupeurt carried out gardening work to make the grounds liveable.
21. It is clear that Mr and Mrs Beaupeurt have had little in the way of joint social activity since July 2008. Mr Page-Smith and Mr Audley wrote in their respective statements that Mr and Mrs Beaupeurt were not living in a marriage-like relationship. The question of whether a man and woman are to be treated as members of a couple differs in accordance with their marital status. If they are not married, the issue is whether there is a marriage-like relationship between them. However, in the case of married persons, the issue is whether they have been living separately and apart. Nevertheless, I accept that Mr Page-Smith and Mr Audley were of the opinion that Mr and Mrs Beaupeurt were living separately and apart. However, as I understood Mr Beaupeurt’s evidence, they saw him when he was living in New South Wales and not after he had returned to Queensland and co-occupied premises with Mrs Beaupeurt.
22. I accept that Mr and Mrs Beaupeurt have not had a sexual relationship in that time. That is not a necessary component of a long-term marriage relationship.
23. A significant feature of the relationship between Mr and Mrs Beaupeurt in this case is the nature of the commitment that each has to the other. This has been demonstrated by the willingness of each of them to live at the same premises, albeit at arm’s length. It has also been indicated in a prospective sense in the “Assessment of Living Arrangements” forms they completed while living at Doonan. Each expressed the opinion that the other would provide support in relation to illness, personal crises and family disputes. Mrs Beaupeurt also included money matters. That commitment has particular significance in this matter because of Mr Beaupeurt’s health problems. Mrs Beaupeurt did not give evidence at the hearing but did so at the SSAT hearing. In the published reasons for the SSAT’s decision, she is noted as acknowledging the then recent diagnosis of Mr Beaupeurt’s leukaemia and the need for her to take on an even more active caring role. The “Assessment of Living Arrangements” forms also show that Mr and Mrs Beaupeurt have each nominated the other as a beneficiary in their respective wills and Mr Beaupeurt’s evidence was that his will has not been revoked. The sense of commitment is also demonstrated in the unwillingness of either of them to obtain a divorce.
24. Each marriage has its own characteristics and the factors which characterise a particular marriage relationship are bound to change over time. In this case, Mr and Mrs Beaupeurt have been married for more than 19 years. Clearly, there has been a change in their circumstances. Nonetheless, their relationship has remained one characterised by a willingness to return to the same premises after a period of some months of living in different Australian states, to incur the joint financial responsibility of a substantial mortgage and to provide assistance to each other in times of need.
25. On the evidence before me in relation to the factors detailed in s 4(3) of the Act, I am satisfied that Mr and Mrs Beaupeurt are married to each other and have not been living separately and apart on a permanent or indefinite basis since 7 July 2008. It follows that Mr and Mrs Beaupeurt are members of a couple for the purposes of s 4(2) of the Act.
decision
26. The Tribunal affirms the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: ............................[Sgd]................................................
Mátyás Kochárdy, Research AssociateDate of Hearing 16 March 2009
Date of Decision 1 April 2009
The Applicant was self-represented
Solicitor for the Respondent Mr Robert Hamilton, Departmental Advocate
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