Paul Greenwood and Secretary, Department of Social Services Ayumi Greenwood OTHER PARTY
[2014] AATA 843
•7 November 2014
[2014] AATA 843
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1327
Re
Paul Greenwood
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Ayumi Greenwood
OTHER PARTY
DECISION
Tribunal Senior Member CR Walsh
Date 7 November 2014 Place Perth The Tribunal affirms the decision under review.
..(Sgd) CR Walsh..................................
Senior Member CR Walsh
CATCHWORDS
Family Tax Benefit (FTB) – applicant and his ex-wife were “members of a couple” during the 2010/2011 financial year – applicant and his ex-wife were not “living separately and apart from one another on a permanent or indefinite basis” in the 2010/2011 financial year – applicant not entitled to FTB for 2010/2011 financial year – decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 – s 3 – s 21- s 21(2) – s 22- s 26 – s 29
A New Tax System (Family Assistance) (Administration) Act 1999
Social Security Act 1991 – s 4(2)(a) – s 4(3)Social Security (Administration) Act 1999 – s 110(1)
CASES
Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792
Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470
Holmes and Secretary, Department of Social Security [1987] AATA 896
O’Brien and Anor and Secretary, Department of Employment and Workplace Relations and Anor [2007] AATA 1439
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Ford & Secretary, Department of Families and Community Services (2003) 72 ALD 718
Re “H” and Secretary, Department of Social Security [1989] AATA 127
Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497
Secretary, Department of Employment, Education and Workplace Relations and Stronach [2007] AATA 1398Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
SECONDARY MATERIALS
Family Assistance Guide as issued on 13 May 2013 – Part 3.1.1.34
REASONS FOR DECISION
Senior Member CR Walsh
7 November 2014
INTRODUCTION
This application concerns whether Mr Paul Greenwood and Mrs Ayumi Greenwood were “members of a couple” during the 2010/2011 financial year for Family Tax Benefit (FTB) purposes. If “yes”, then, as was decided by the Social Security Appeals Tribunal (SSAT) on 17 February 2014, pursuant to s 26 of the A New Tax System (Family Assistance) Act 1999 (FAA), only one “member of a couple” is eligible for FTB for the 2010/2011 financial year. Since Mrs Greenwood has already been paid FTB for the 2010/2011 financial year; Mr Greenwood would not also be eligible for FTB for that year.
BACKGROUND
Mr Greenwood and Mrs Greenwood are the parents of four children, currently aged between approximately 4 and 15 years of age.
Mr Greenwood and Mrs Greenwood were married on 19 September 1998.
Centrelink’s computer records show the relationship status of Mr Greenwood and Mrs Greenwood as “separated” effective 2 February 2012. This is as a result of Mrs Greenwood’s application to Centrelink for a “Parenting Payment Single” in February 2012.
Mrs Greenwood was paid FTB for the 2010/2011 financial year by instalments.
On 20 June 2012, Mr Greenwood lodged a “Claim for an annual lump sum payment of Family Tax Benefit” for the 2010/2011 financial year with the Family Assistance Office (FTB Claim).
In the FTB Claim, Mr Greenwood indicated his relationship status as “separated”, from 3 July 2010 (being the date on which his and Mrs Greenwood’s fourth child was born), and that he had 100% care of the Children from 3 July 2010.
On 17 August 2012, a Centrelink officer rejected the FTB Claim (Original Decision). The Original Decision stated:
We cannot pay you Family Tax Benefit (FTB) as a blended family for your children for the period 1 July 2010 to 30 June 2011 because your partner has already been paid FTB for this period.
On 11 July 2013, Mr Greenwood sought an internal review of the Original Decision by a Centrelink Authorised Review Officer (ARO) and, on 1 August 2013, the ARO affirmed the Original Decision (ARO Decision).
In the ARO Decision, the ARO stated:
While you have stated that you separated from 3 July 2010, there is no record of any contact [with Centrelink] prior to February 2012 from you or your partner to request a reassessment of your marital status or FTB entitlement. The Newborn Child Claim lodged on 20 August 2010 at Subiaco office was co-signed by you as the partner of Ayumi Greenwood.
Because you were considered to be a member of a couple prior to 2 February 2012 for social security and family assistance purposes, then only one member of a couple was able to qualify for FTB under section 26 of the FA Act and in your case, your then partner was the FTB recipient.
On 28 October 2013, Mr Greenwood sought a review of the ARO Decision by the SSAT and, on 17 February 2014, the SSAT affirmed the ARO Decision (SSAT Decision). In so doing, the SSAT stated:
27.The [SSAT] was satisfied that the Greenwoods were still in a partnership and were not living separately and apart on a permanent and indefinite basis throughout the 2010/2011 financial year, and beyond it. A consequence is that Mr Greenwood is not able to receive a family tax benefit for the 2010/2011 financial year.
28.The [SSAT] noted a Centrelink authorised review officer had on 27 November 2013 affirmed an earlier Centrelink decision made on 17 August 2012 that until 11 April 2012 Mrs Greenwood had 100% care of the children (and was entitled to that percentage of family tax benefit until that date) (folios 12 – 14). Mr Greenwood was not a party to that decision and did not receive a copy of the authorised review officer’s decision.
29.The decision of 27 November 2013 set out that the Child Support Agency (now known as the Department of Human Services Child Support) had determined a new percentage of care for the children on 27 July 2012 effective from 12 April 2012, which attributed 50% of the children’s care to each of the parents. This decision reduced Mrs Greenwood’s rate of family tax benefit from 12 April 2012.
On 17 March 2014, Mr Greenwood applied to this Tribunal for a review of the SSAT Decision.
ANALYSIS
Members of a couple
Section 21 of the FAA sets out when an individual is eligible for FTB in “normal circumstances.” Broadly, to be eligible for FTB an individual must meet the FTB Australian residence requirements and have at least one “FTB child”, as defined in s 22 of the FAA. Section 21(2) of the FAA provides that an individual will not be eligible for FTB if another section of Subdivision A of Division 1 of Part 3 of the FAA so provides.
Generally, only one “member of a couple” is eligible for FTB. Section 26 of the FAA states:
Only 1 member of a couple eligible for family tax benefit
(1)For any period when 2 individuals who are members of a couple would otherwise be eligible at the same time for family tax benefit in respect of one or more FTB children or regular care children only one member is eligible.
(2)The member who is eligible is the one determined by the Secretary to be eligible, having regard to:
(a)whether one member of the couple is the primary carer for the child or children; and
(b)whether the members have made a written agreement nominating one of them as the member who can make a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child or children.
Section 3 of the FAA provides that the phrase “member of a couple” has the same meaning in the FAA as it has in of the Social Security Act 1991 (SSA). Section 4(2) of the SSA provides that a person is a “member of a couple” for the purposes of the SSA (i.e. for social security purposes) 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… [Emphasis added]
Considering the concept of “living separately and apart”, O’Loughlin J said in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 175:
The subject of living separately and apart is covered by s 49(2) of the Family Law Act. It provides:
The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
Addressing the subject of “separation” Watson J said in In Marriage of Todd (No 2) (1976) 25 FLR 260 at 262-263:
In my view ‘separation’ means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not resume the marital relationship and act on that intention, or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple may vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
When it is arrested that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case. [Emphasis added]
Pursuant to s 4(3) of the SSA, in forming an opinion about the relationship between two people, the Secretary is required to have regard to all the circumstances of the relationship including, in particular, the following matters:[1]
[1] Whilst consideration of the factors listed in s 4(3) of the SSA is mandatory, a finding of fact about each factor is not required: see Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92 at [24].
(a) the financial aspects of the relationship,[2] including:
[2] In Pelka [ibid] French J observed (at [53]) that consideration should be given to the reasons behind the people’s financial arrangements.
(i)any joint ownership of real estate or other major assets and 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,[3] including:
[3] It has been held that consideration should be given of the reasons behind the peoples’ decision to live together (or remain living together) and the reasons behind the various other aspects of the nature of the household: Holmes and Secretary, Department of Social Security [1987] AATA 896 at [17] and Secretary, Department of Employment, Education and Workplace Relations and Stronach [2007] AATA 1398 at [31].
(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 household work 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;[4] and
(e) the nature of the people’s commitment to each other,[5] including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that 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. [Emphasis added]
[4] The reasons behind the commencement, continuation or cessation of the sexual relationship should be considered, but a sexual relationship is not, of itself, a determining factor and is only one factor for consideration: see Re Ford & Secretary, Department of Families and Community Services (2003) 72 ALD 718. An affair outside the relationship will not necessarily indicate a relationship breakdown: see Re “H” and Secretary, Department of Social Security [1989] AATA 127 at [37].
[5] Consideration must be given to the nature and reasons behind the peoples’ commitment to each other: see O’Brien and Anor and Secretary, Department of Employment and Workplace Relations and Anor [2007] AATA 1439 at [40] to [41]. The commitment that the people have to one another should be different from the commitment that each of them has to any other person: see Pelka supra at [30].
In ReSpencer and Secretary, Department of Social Security (1987) 13 ALD 497, the Tribunal said (at 500) that the factors in s 4(3) of the SSA are not to be treated as a “tick-off list, with a particular points tally in mind” but rather, they are:
…signposts to a goal for which the decision-make is searching. That goal is the isolation of some exquisite quality in a relationship between two people which distinguishes it from the others built up in the course of their lives.
It is common ground that Mr Greenwood and Mrs Greenwood are presently separated. That is, Mr Greenwood and Mrs Greenwood are no longer “members of a couple” within the meaning of s 4(2)(a) of the SSA and for FTB purposes, as they are currently living separately and apart from one another of a permanent or indefinite basis. What is in dispute is whether Mr Greenwood and Mrs Greenwood were “members of a couple” during the 2010/2011 financial year for social security and FTB purposes. If “yes” then s 26 of the FAA applies with the effect that only one “member of the couple” is eligible for FTB and, as Mrs Greenwood has already been paid FTB for the 2010/2011 financial year, Mr Greenwood is not also eligible for FTB for that year.
Centrelink’s computer records indicate that at no time prior to February 2012 had either Mr Greenwood or Mrs Greenwood advised Centrelink that they had separated: refer to paragraph 4 above.
Section 110(1) of the Social Security (Administration) Act 1999 (SSAA) provides that if a favourable determination is made following a person having informed Centrelink of the occurrence of an event or a change in circumstances, the determination takes effect whichever is the latter of:
(a)the day on which the person so informed Centrelink; or
(b)the day on which the event or change occurred.
The Secretary contends that s 110(1) of the SSAA applies or provides guidance, such that the date of effect of any separation of Mr Greenwood and Mrs Greenwood will be whichever is the later of the end of their relationship and the date Centrelink was advised of the end of their relationship. According to the Secretary, even if Mr Greenwood and Mrs Greenwood now say that they were separated before 2 February 2012 (i.e. on 3 July 2000), they should still be treated as “members of a couple” during any period prior to when Mr Greenwood and Mrs Greenwood advised Centrelink of their separation. The Secretary contends that during the 2010/2011 financial year, Mr Greenwood and Mrs Greenwood must be considered as “members of a couple” for social security and FTB purposes and, since Mrs Greenwood has already been paid FTB for the 2010/2011 financial year, Mr Greenwood is not eligible for FTB for that financial year.
The Tribunal does not accept this contention. There is no provision in the FAA or the A New Tax System (Family Assistance) (Administration) Act 1999 (FAAA) relating to the date of effect of notification of a change in circumstances. Further, there is nothing in the FAA or the FAAA to suggest that s 110 of the SSAA is intended to apply in determining the date of effect of a notification of a change in circumstances for FTB purposes. Accordingly, the Tribunal must consider the circumstances of Mr and Mrs Greenwood’s marital relationship in the 2010/2011 financial year, by reference to the five factors listed in s 4(3) of the FAA, to determine whether the Greenwoods were living separately and apart from one another on a permanent or indefinite basis in the 2010/2011 financial year and, therefore, whether they were “members of a couple” for social security and FTB purposes in that year.
Mr Greenwood and Mrs Greenwood gave the following evidence before the SSAT concerning their marital relationship in the 2010/2011 financial year:
14. Mr Greenwood’s evidence to the [SSAT] included:
a)In December 2009, when in Japan together, Mrs Greenwood had told him their marriage was over. However, she had ‘come around’ and returned to him in Perth. On reflection he now believes she did this to obtain a financial advantage (a more generous settlement and Centrelink benefits);
b)Mrs Greenwood had a difficult birth with [the couple’s fourth child]. He put their subsequent marital troubles down to Mrs Greenwood’s post natal recovery. He described Mrs Greenwood as ‘unstable’. He did not anticipate Mrs Greenwood would ‘completely’ separate from him;
c)In June 2010 Mrs Greenwood opened her own bank account and arranged for the children’s FTB to be paid into it;
d)On 16 June 2012 he accepted his marriage was over following an attack by Mrs Greenwood. He said he was a victim of Mrs Greenwood’s domestic violence. He did not want his marriage to end;
e)Until 16 June 2012 he had some hope he and Mrs Greenwood [would] (sic.) be reconciled and that their marriage would continue;
f) Mrs Greenwood had spent $50,000 on legal fees;
g)Mrs Greenwood was under an obligation to advice Centrelink of her changed living situation.
15. Mrs Greenwood told the [SSAT]:
a)After July 2010 she also held hopes they might reconcile. Her major issue was Mr Greenwood’s drinking and his domestic violence;
b)Toward the end of 2010 they went to Relationships Australia for joint counselling sessions. After several sessions Mr Greenwood refused to attend. She continued to attend these sessions;
c)Mr Greenwood was in charge of all the money. Prior to opening her own account in June 2010 into which she received her Centrelink payments, the payments were paid into a joint account;
d) She did not access the joint account;
e)Throughout the marriage, until March 2013, she performed domestic task (looking after the children, cleaning, shopping and cooking) in the home to assist Mr Greenwood maintain his employment. She ceased doing these tasks in March 2013 because Mr Greenwood ceased paying the mortgage;
f)The property settlement was finalised in October 2013, which is when Mr Greenwood moved out of the house.
16.Mr Greenwood added that he ceased attending Relationships Australia because he believed the counsellor and Mrs Greenwood formed an alliance against him.
In addition to each providing written submissions, Mr Greenwood and Mrs Greenwood both appeared before this Tribunal at the hearing of this application and gave evidence. The evidence which is relevant to the factors listed in s 4(3) of the SSA, and whether Mr Greenwood and Mrs Greenwood were “members of a couple” for FTB and social security purposes in the 2010/2011 financial year, is summarised below. No independent third party evidence was provided.
(a) Financial aspects of the relationship
The evidence which suggests that Mr Greenwood and Mrs Greenwood were still “members of a couple” in the 2010/2011 financial year includes the following.
Mr Greenwood and Mrs Greenwood continued to jointly own the family home during the 2010/2011 financial year. The evidence from Mr Greenwood was that he stopped paying the joint mortgage in January 2013 and that a property settlement in relation to the jointly owned family home took place in late September/October 2013 (i.e. well after the 2010/2011 financial year), at which time Mr Greenwood moved out of the family home.
In the 2010/2011 financial year Mr Greenwood continued to pay the mortgage on the jointly owned family home as well as other bills, such as rates, water, utility bills, car expenses and health insurance.
Mr Greenwood and Mr Greenwood continued to hold a joint bank account in the 2010/2011 financial year, although Mrs Greenwood never accessed this account in that year. Mrs Greenwood said that the reason she never accessed the joint bank account in the 2010/2011 financial year was because she was “scared” of Mr Greenwood who continually came home from work drunk and, further, that he had complete “control” over her.
In 2010 Mrs Greenwood opened her own bank account and directed Centrelink to pay her FTB into that account instead of into her joint bank account with Mr Greenwood, as was previously the case. Mrs Greenwood’s evidence was that the vast majority of the FTB that she received would go towards family expenses, for example food and groceries and children's clothing and other expenses (such as nappies, school fees, sports fees and so on). Before opening her own bank account in 2010, Mrs Greenwood said that her FTB was paid into her joint bank account with Mr Greenwood and that Mr Greenwood would give her approximately $200 to $250 cash per week, from that joint account, to cover food and other family expenses.
Mr Greenwood and Mrs Greenwood continued to have joint policies for health insurance in the 2010/2011 financial year and Mr Greenwood paid the car insurance on the two cars they both drove throughout the 2010/2011 financial year.
A main factor against Mr Greenwood and Mrs Greenwood being “members of a couple” in relation to financial aspects is that Mrs Greenwood opened a bank account in her own name. This meant that Mr Greenwood no longer had direct access to the FTB payments that were made to Mrs Greenwood, as he had done previously.
Mr Greenwood gave evidence that in February 2011 he used half the equity in the family home to purchase a business, using an existing line of credit, without first consulting or informing Mrs Greenwood.
When considering the financial aspects of Mr Greenwood and Mrs Greenwoods’ relationship in the 2010/2011 financial year as a whole, those aspects point in favour of Mr Greenwood and Mrs Greenwood being “members of a couple” in that year. The main difference between the financial aspects before the 2010/2011 financial year and during the 2010/2011 financial year was that Mrs Greenwood had opened her own bank account and directed Centrelink to pay her FTB into that bank account instead of into her joint bank account with Mr Greenwood, as was previously the case. Mrs Greenwood explained that her reason for taking this course of action was to prevent Mr Greenwood from spending so much of her FTB on alcohol for his own consumption, which money could instead be used to pay for family expenses. Mr Greenwood neither confirmed nor denied whether, prior to Mrs Greenwood opening her own bank account in 2010 and having her FTB paid into that account, he had spent a lot of the FTB payments (previously paid into their joint account) on alcohol.
Mr Greenwood contended that there was no “pooling of resources” or “sharing of expenses” during the 2010/2011 financial year. He said that he and Mrs Greenwood were no more than “share mates” or “housemates” in the 2010/2011 financial year and their relationship was “nothing like a marriage”. The Tribunal does not accept this contention. Objectively, Mr Greenwood and Mrs Greenwood continued to pool their resources and share their expenses in the 2010/2011 financial year. Often when people are not “members of a couple” there tends to be a strict division and sharing of financial expenses. That was not the case here. In the 2010/2011 financial year, Mrs Greenwood used the FTB to pay for some of the family’s expenses (such as food and other household expenses and children’s clothing and other expenses) and Mr Greenwood paid for other family expenses from his income as an accountant (such as the mortgage, utility bills, car insurance, health insurance and so on). That represents a pooling of resources and a sharing of expenses. During the 2010/2011 financial year, Mr Greenwood and Mrs Greenwood continued to have joint ownership of real property, a joint mortgage and joint insurance arrangements. All those factors, when considered as a whole, suggest that they continued to be “members of a couple” in the 2010/2011 financial year. Mr Greenwood said that he was forced to continue paying the mortgage in the 2010/2011 financial year because he did not want to adversely affect his credit rating. However, Mr Greenwood’s concerns about affecting his credit rating did not prevent him from stopping payments on the mortgage later in January 2013.
(b) Nature of the household
The evidence in relation to nature of a household in the 2010/2011 financial year tends to indicate that Mr Greenwood and Mrs Greenwood were “members of a couple” during that year.
Mr Greenwood and Mrs Greenwood continued to have joint care of the children during the 2010/2011 financial year. Mr Greenwood touched briefly in evidence on the activities that he did with the children, such as trying to engage with them over dinner, taking them on camping trips and other holidays. There was no evidence to suggest that care of the children became separate in any way during the 2010/2011 financial year. Further, Mrs Greenwood gave evidence that she did not made any application for child support during the 2010/2011 financial year.
Mrs Greenwood continued to prepare meals for Mr Greenwood and the children in the 2010/2011 financial year and Mr Greenwood and Mrs Greenwood continued to eat meals with the family in that year. Mrs Greenwood continued to do all of the family’s domestic chores (such as cooking, cleaning, washing and ironing clothes and some gardening) until approximately March 2013. There was evidence that Mrs Greenwood ceased ironing Mr Greenwood’s clothes in about March 2013 when she discovered that Mr Greenwood had ceased paying the mortgage on the jointly owned family home.
During the 2010/2011 financial year Mr Greenwood and Mrs Greenwood continued to share the common areas of the family house such as the dining area, the kitchen, the lounge and the bathroom. The Tribunal acknowledges that the evidence of both Mr Greenwood and Mrs Greenwood was that the house is very small (being 105 square metres in size) with six people living in it, making it practically difficult not to share those common areas.
Evidence on the nature of the household which weighs against Mr Greenwood and Mrs Greenwood being “members of a couple” in the 2010/2011 financial year, is Mrs Greenwood moving out of the master bedroom upon her return from hospital with their newborn baby (being their fourth child together) in July 2010. This is a change in the nature of the household that tends to point against Mr Greenwood and Mrs Greenwood being “members of a couple” after July 2010. Having said that, Mrs Greenwood's evidence was that she did this following the birth of each of her children so that she could wake up in the night to feed the baby without disturbing Mr Greenwood. Mr Greenwood disputed this.
The evidence was that before 2010/2011 financial year, that the Greenwoods had two cars, both registered in the name of Mr Greenwood, but that they had an arrangement whereby one car was considered to be Mr Greenwood’s car and the other was considered to be Mrs Greenwood’s car. However, as a matter of convenience, they would often drive each other’s car (for example, because one car was parked behind the other car in the driveway, making it easier to drive the car at the front out of the driveway first). Mr Greenwood paid for the car insurance on both of the cars. However, at some point after July 2010, Mrs Greenwood stopped driving Mr Greenwood's car and Mr Greenwood said that he put a steering wheel lock on his car to stop Mrs Greenwood driving it.
The evidence in relation to nature of a household when considered as a whole tends to indicate that Mr Greenwood and Mrs Greenwood were “members of a couple” in the 2010/2011 financial year. The Tribunal acknowledges that whilst the arrangements between them in the 2010/2011 financial year may, to some extent, have been arrangements of convenience or necessity, in the 2010/2011 financial year Mr Greenwood and Mrs Greenwood nevertheless continued to take their meals together and to share common areas of the house with their children and Mrs Greenwood continued to do the majority of the household chores whilst Mr Greenwood tended to be the primary breadwinner going out to earn an income, as was the case before the 2010/2011 financial year.
(c) Social aspects of the relationship
Evidence which suggests Mr Greenwood and Mrs Greenwood were “members of a couple” in the 2010/2011 financial year includes the fact that Mr Greenwood and Mrs Greenwood have both acknowledged that they continued to attend some children's events together (such as school assemblies, a school picnic and sporting events, like soccer matches and wind-ups), although they would normally arrive at those events separately. Mr Greenwood suggested in his written material that he and Mrs Greenwood did not engage in any joint social activities in the 2010/2011 financial year. This evidence tends to point against Mr Greenwood and Mrs Greenwood being “members of a couple” in the 2010/2011 financial year. Although, there is other evidence suggesting that they were “members of a couple” in that year.
Mrs Greenwood said that she thought that other people, outside their marriage, would have continued to see them as a couple in the 2010/2011 and that Mr Greenwood continued to introduce her to other people as his “wife” during the 2010/2011 financial year. Mr Greenwood pointed out that they were still legally married during the 2010/2011 financial year, so that introducing Mrs Greenwood to other people as his “wife” was factually accurate. How the parties portrayed themselves to third parties and whether they portrayed themselves as being “members of a couple” is a relevant consideration for the Tribunal and the Tribunal takes the view that by introducing Mrs Greenwood as his “wife” in the 2010/2011 financial year, Mr Greenwood portrayed to other people that he and Mrs Greenwood were still “members of a couple” in the 2010/2011 financial year.
Mrs Greenwood gave evidence that she, Mr Greenwood and their four children went on a family holiday (somewhere in the south west of Western Australia) in late 2010. This joint social activity weighs in favour of Mr Greenwood and Mrs Greenwood being “members of a couple” in the 2010/2011 financial year.
On balance, the evidence about the social aspects of Mr Greenwood and Mrs Greenwood’s relationship in the 2010/2011 financial year shows that they remained “members of a couple” during the 2010/2011 financial year.
(d) Sexual relationship
Based on the evidence of both Mr Greenwood and Mrs Greenwood, there was no sexual relationship between them after 2 July 2010, being the day before the birth of their fourth child on 3 July 2010. This factor weights against them being “members of a couple” in the 2010/2011 financial year.
Mr Greenwood also gave evidence that he commenced courting and sleeping with other women in the 2010/2011. This also weighs against Mr Greenwood and Mrs Greenwood being “members of a couple” in the 2010/2011 financial year, but is not by itself determinative: see the cases referred to above in footnote 4.
The absence of a sexual relationship between Mr Greenwood and Mrs Greenwood for the majority of the 2010/2011 financial year is not, by itself, determinative of a finding that Mr Greenwood and Mrs Greenwood were not “members of a couple” in the 2010/2011 financial year: see Gordon v Secretary, Department of Employment and Workplace Relation [2006] AATA 792 at [34], Hartley v Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470 at [51] and the cases referred to above in footnote 4.
(e) Nature of commitment to each other
On balance, the evidence on the nature of Mr Greenwood and Mrs Greenwood’s nature of their commitment to each other in the 2010/2011 financial year shows that Mr Greenwood and Mrs Greenwood were still “members of a couple” in the 2010/2011 financial year.
Evidence was given that Mr Greenwood and Mrs Greenwood had a friend mediate between them after the birth of their fourth child, on 3 July 2010, when they were having difficulties.
In addition, Mr Greenwood and Mrs Greenwood both acknowledge that they attended “Relationships Australia” in about November 2010 for counselling. Mr Greenwood's evidence was that he considered the sole purpose of the counselling session to be to facilitate communication between him and Mrs Greenwood in relation to looking after the children going forward as, according to Mr Greenwood, Mrs Greenwood had, by this time, stopped communicating with him altogether. However, when pressed, Mr Greenwood accepted that reconciliation was probably “open for discussion”. When asked about his views on his relationship with Mrs Greenwood at the time of attending the counselling session at “Relationships Australia”, Mr Greenwood said that he “was in two minds” about it. He said that “the relationship wasn’t good but at the same time it would be a lot easier in some respects of life for us to live together amicable, particularly, or most especially in the context of four children whose ages are…15, 12, 8 and 4 ½”. The fact that Mr Greenwood “was in two minds” at the time of the counselling session with “Relationships Australia” in November 2010, suggests that his relationship with Mrs Greenwood was not at that stage of one which was permanently or indefinitely over. When someone is still in two minds about their relationship with another person, it cannot be said that they are living separately and apart on a permanent and indefinite basis.
Mrs Greenwood gave evidence that she viewed her and Mr Greenwood’s counselling session at “Relationship Australia” as relating to her relationship with Mr Greenwood, as opposed to strictly being about children's issues. Mrs Greenwood said that she had hoped that as a result of the counselling session Mr Greenwood would stop drinking so much (and abusing the family verbally, physically and financially) and that they could “fix” their marriage and possibly reconcile. Mrs Greenwood said that whilst her feelings for Mr Greenwood had changed by July 2010, she hadn't finally decided to separate from him at that point.
Evidence concerning the nature of Mr Greenwood and Mrs Greenwood’s commitment to one another in the 2010/2011 financial year which weighs against Mr Greenwood and Mrs Greenwood being “members of a couple” in the 2010/2011 is the fact that Mrs Greenwood effectively stopped speaking to Mr Greenwood for large parts of that year. Mr Greenwood also said in his evidence that he felt that Mrs Greenwood never gave any indication to him in the 2010/2011 financial year (including at their counselling session at “Relationships Australia”) that she wanted to reconcile or had any intention of reconciling with him.
On balance, the Tribunal considers that the evidence in relation to the nature of Mr Greenwood and Mrs Greenwood’s commitment to one another in the 2010/2011 financial year supports a finding that Mr Greenwood and Mrs Greenwood were still “members of a couple” within the meaning of s 4(2)(a) of the SSA and, it follows, for FTB purposes during the 2010/2011 financial year.
(f) Conclusion on “members of a couple”
Whilst it is clear from the evidence that Mr and Mrs Greenwood’s relationship in the 2010/2011 financial year was far from being a “happy” one, and it is acknowledged that their marital relationship had many problems, including financial problems which ultimately appear to have led to their separation, the Tribunal nevertheless considers that they were “members of a couple” within the meaning of s 4(2)(a) of the SSA and for FTB purposes in the 2010/2011 financial year based on an objective consideration of all five factors listed in s 4(3) of the SSA. That is, on balance, it cannot be concluded that Mr Greenwood and Mrs Greenwood were living separately and apart on a permanent and indefinite basis in the 2010/2011 financial year or that there had been a destruction of the consortium vitae in that year: Staunton-Smith.
Much was made by Mr Greenwood that both parties had used the date 3 July 2010 as the effective date of separation for Family Court purposes. The date of 3 July 2010 was given by the parties as the date of separation long after the end of the 2010/2011 financial year. Any date of separation given by the parties so long after the year relevant to this application (being the 2010/2011 financial year) is not determinative. Whilst the parties' views of when they separated are not irrelevant, it does not necessarily mean that this is the date that they separated for social security and FTB purposes. The parties would not have had the s 4(3) factors in their mind when providing 3 July 2010 as the date of their separation. It is a date they have arrived at by looking back, with the benefit of hindsight, at their relationship and realising that 3 July 2010 (being the date their fourth child was born) may well have been the beginning of the end of their marriage. The end of his sexual relationship with Mrs Greenwood (on 2 July 2010) appears from the evidence to be quite significant to Mr Greenwood’s and the reason for his contention that he and Mrs Greenwood were no longer “members of a couple” on 3 July 2010. Mrs Greenwood indicated that 3 July 2010 is the date on which she considers her feelings for Mr Greenwood changed. So it certainly appears that 3 July 2010 was some sort of turning point for in the relationship for both Mr Greenwood and Mrs Greenwood, but it does not automatically follow that 3 July 2010 is the date of separation for social security and FTB purposes, because all of the factors in s 4(3) of the SSA need to be considered and weighed.
Having found that Mr Greenwood and Mrs Greenwood were “members of a couple” in the 2010/2011 financial year for social security and FTB purposes, it follows that s 26 of the FAA applies such that only one member of the couple is eligible for FTB for the 2010/2011 financial year. Since Mrs Greenwood has already been paid FTB for the 2010/2011 financial year, Mr Greenwood is not also eligible for FTB for that year.
Eligibility for FTB of separated members of a couple for period before separation
Section 29 of the FAA contains a discretion for cases where two people are not members of a couple claim a FTB for a past period during which they were “members of a couple” with an “FTB child”. Pursuant to s 29 of the FAA, the Secretary may determine that both people are eligible for FTB and a percentage for each person’s benefit may be allocated.
Family assistance legislation is interpreted by Centrelink officers with the aid of the “Family Assistance Guide” (Guide).[6] Of particular relevance to this application is Part 3.1.1.34 of the Guide, titled “Sharing FTB for Separated Couples”, which states:
Sharing FTB between 2 people who have separated, for a past period while they were still a couple
A determination under A New Tax System (Family Assistance) Act 1999 section 29 must be made specifying the percentage of care that each person provided for their FTB child. The effect of the determination is to divide the total rate that would have been payable to one member of the former couple between both parties. Because the claim relates to a past period when they were a couple, the FTB income tests are applied using ATI (1.1.A.20) of both individuals for the period.
Explanation: This means that the total rate of FTB payable for the children is the same as the rate that would have been paid if the couple had not separated.
However, it is not appropriate to apply a determination under A New Tax System (Family Assistance) Act 1999 section 29, that is to pay both the individual and the ex-partner, where one person has been paid when the couple were still together. An ex-partner’s claim for FTB should be rejected in this case. [Emphasis added]
[6] It is well-established that in the exercise of its review function, the Tribunal must take into account any relevant statement of governmental policy which is consistent with the statute concerned, unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.
Applying Part 3.1.1.34 of the Guide, it is not appropriate in this case for the discretion in s 29 of the FAA to be exercised so as to pay FTB to Mr Greenwood for the 2010/2011 financial year in circumstances where Mrs Greenwood has already been paid FTB for that financial year.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision.
I certify that the preceding 62 (sixty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh …(Sgd) T Freeman.......
Associate
Dated 7 November 2014
Dates of hearing 14 & 31 October 2014 Representative for the Applicant
Self
Representative for the Respondent Ms A Ladhams Solicitors for the Respondent
Australian Government Solicitor
Representative for the Other Party Self
0
7
0