Pozzi and Secretary, Department of Education, Employment and Workplace Relations
[2010] AATA 807
•21 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 807
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2580
GENERAL ADMINISTRATIVE DIVISION ) Re John Pozzi Applicant
And
Secretary, Department of Education, Employment and Workplace Relations
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date21 October 2010
PlaceSydney
Decision The decision under review is set aside and in substitution the Tribunal decides that Mr Pozzi was living separately and apart from his wife on a permanent basis at the time he applied for Newstart Allowance and since; as he is not a member of a couple, he is entitled to payment at the single rate.
..............[sgd]................................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – Disability Support Pension – whether applicant a member of a couple – separated under the same roof – whether applicant living separately an apart on a permanent or indefinite basis – marriage unhappy for many years – whether evidence of change required – Tribunal satisfied that applicant living separately and apart – satisfied applicant not a member of a couple – decision under review set aside
Family Law Act 1975, s 49
Social Security Act 1991, ss 4, 593, 1068, 1068-B1
In Marriage of Todd (No 2) (1976) 25 FLR 260
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Staunton-Smith v SDSS (1990) 32 FCR 164
REASONS FOR DECISION
21 October 2010 Senior Member Jill Toohey Background
1. John Pozzi met his wife, Shirley Pozzi, in 1974. They married in 1982. They have two children, now aged 26 and 20. Mr Pozzi claims the marriage has been unhappy for many years and that, for some time now, he and his wife have lived separately and apart under the same roof.
2. On 6 July 2009, Mr Pozzi started receiving Newstart Allowance. He seeks review of a decision of the Social Security Appeals Tribunal (SSAT) made on 10 May 2010 that he is not entitled to payment at the rate for a single person.
Legislation
3. The rate at which a person is paid Newstart Allowance is calculated according to a formula in the Social Security Act1991 (the Act) and varies according to whether a person is a member of a couple or single: ss 593, 1068, 1068-B1. A member of a couple is paid less than if he or she were single, the rationale being that a couple has the ability to pool resources and live more cheaply than if each were single.
4. Section 4(2) of the Act provides that a person is a member of a couple for the purposes of this Act if the person is legally married to another person and is not, in the Secretary's opinion, living separately and apart from the other person on a permanent or indefinite basis.
5. Section 4(3) of the Act provides that, in forming an opinion about the relationship between two people for the purposes of s 4(2), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following:
(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 issue
6. There is no dispute of any substance about the facts. Mr and Mrs Pozzi’s evidence, which I accept, is set out below.
7. I have to decide whether, although married, Mr Pozzi is not a member of a couple for the purposes of the Act because he is living separately and apart from his wife on a permanent or indefinite basis. If he is not a member of a couple, then he will be entitled to payment at the single rate.
Mr Pozzi’s evidence
8. Mr Pozzi worked full time until 2001 when he had an accident. He was on workers compensation for a time until his employer declared bankruptcy and he lost much of his entitlements. He has had several jobs since, and was recently working part time but was made redundant. He has been unable to find another job. He turned 60 in August 2010 and is now receiving a disability support pension. The Secretary accepts that the decision in these proceedings will apply to the disability support pension.
9. Mr and Mrs Pozzi have lived in their rented three-bedroom home for ten years. She has one bedroom. Their adult children live at home and have a bedroom each. They both work but neither pays rent or contributes towards household costs. Mr Pozzi is clearly committed to his children but describes them as “spoiled”.
10. The marriage has been unhappy for many years. Mr Pozzi gave evidence that there has been no sexual relationship between him and his wife for about ten years; for ten years or so before that, after their second child was born, they had sex once or twice a year. He has not had another sexual relationship and believes neither has his wife.
11. About two and a half years ago, Mr Pozzi’s wife told him to move out of the bedroom because the machine he uses for sleep apnoea was keeping her awake. Around the same time he refused to pay all of the rent because he could not afford it after he lost his job.
12. The date of the claimed separation is not entirely clear. In different Centrelink forms, Mr Pozzi has put it at May 2008, October 2008, and some time 2008 but he was uncertain of the date. He says he cannot recall exactly when he moved out of the bedroom. There is no reason to think he is not being truthful about this and, in all the circumstances, nothing really turns on the actual date. There is no dispute that Mr and Pozzi have not shared a bedroom for between two, and two and a half, years.
13. Mr Pozzi says his wife has curtained off the lounge room from the rest of the house. She and the children use the rumpus room and dining room. They eat separately. She shops and cooks for herself and the children. He buys and prepares his own food and household items which he keeps separately from hers. He occasionally cooks for himself at home but tries to stay away as much as possible. He says his wife will not let him use her food. Very occasionally their daughter will cook and will tell him there is food to be eaten but this has not happened for six or eight months now, and they never eat together any more. His wife does the laundry, including his washing, and cleans the house. He looks after the garden, which he describes as his hobby, and mows the lawn.
14. Until around the time of the separation, Mr Pozzi paid the rent, and his wife paid for other household expenses including food. Since then he has paid half the rent and $10 a week towards electricity. He pays for anything needed in the garden. His wife meets all other expenses. She pays for the telephone which he says she takes with her to work so he cannot use it. He uses his own pre-paid mobile phone. She pays for the children’s use of the internet.
15. Mr Pozzi gave evidence that he and his wife have never owned joint assets and have always maintained separate bank accounts. Other than their joint tenancy of the house, they have no joint liabilities. He has two superannuation funds; his children are nominated as beneficiaries of one, and his wife and children of the other. He does not have a will.
16. Mr Pozzi says he and his wife have no social life and he stays away from the house as much as he can. The family usually spends Christmas Day together and his wife’s brother joins then. They sometimes go out for birthday celebrations if the children initiate them but have not done so since his birthday in August 2009. They have no friends in common and no one visits them, including relatives.
17. Mr Pozzi says he cannot afford to move out live on his own. He receives $203 a week from Centrelink from which he pays $150 rent and $10 for electricity. He says even if he receives payment at the single rate, he could not afford to leave; he would have to find someone to share with or move to the country where he would not see his children. He has recently withdrawn $4000 from his superannuation in order to meet living expenses and has approximately $11,000 left. He says his wife talks about moving out but has not done so. He does not know what will happen when his children leave home.
18. Mr Pozzi has moved out twice. The first time was about two years ago when he went to a boarding house for one night. About six weeks later, he moved to a hotel for two months; he returned home on legal advice that he might lose his right to live in the house. They have never discussed divorce. Mr Pozzi says he has not initiated divorce because his wife initiated the separation, not he, and he is a Christian and does not believe a man should divorce his wife. Moreover, he would be more depressed if he had to move out and not see his children. He says that, even if he could afford all of the rent, it would not change their relationship because “things have gone too far”.
Mrs Pozzi’s evidence
19. The written reasons of the SSAT record that Mr Pozzi attended that hearing in person and Mrs Pozzi gave evidence by telephone. The SSAT stated that it found both to be credible witnesses who gave “essentially consistent accounts of the current state of their relationship”.
20. Mrs Pozzi did not give evidence in these proceedings. Mr Pozzi says he did not ask her to do so. He says she runs the school canteen; it was hard enough to get her to speak to the SSAT and she does not want to do anything to help him.
21. Given that claims of living separately and apart under one roof are easily made and may be motivated by financial gain, I have considered whether I should require Mrs Pozzi to give evidence. I accept that, given the option, she would probably decline to do so. The SSAT had no reason to doubt her evidence or that of Mr Pozzi, and the Secretary has no argument with the SSAT’s record of their evidence. I am satisfied that Mrs Pozzi’s evidence would be essentially the same before this tribunal as before the SSAT and that I can rely on the SSAT’s record.
22. Mrs Pozzi told the SSAT she and her husband stopped sharing a bedroom because he refused to pay the full rent and his sleep apnoea machine kept her awake when she needed to got up early for work. She confirmed they had not had a sexual relationship for years. She said she let him stay in the house because he had nowhere else to live.
23. Mrs Pozzi confirmed the financial and household arrangements as described by Mr Pozzi; he bought and prepared his own food unless their daughter cooked for them; they sometimes watched television as a family and sometimes went out for birthdays with the children. She said she was planning to move to another house because she needed to get away and she thought they should have a trial separation. She would care for him if she became ill but did not think he would do the same for her. She has superannuation and assumed her husband was the beneficiary as she had never nominated anyone but she would change this so that only the children were beneficiaries. She did not have a will.
24. Mrs Pozzi said that, even if Mr Pozzi agreed to pay all the rent, nothing would change because too much damage had been done; she considered herself a separated person. She said she had not considered divorce because “things are alright as they are”.
Other evidence
25. In support of his application, Mr Pozzi has submitted a letter dated 21 September 2010 from A/Professor Ian Wilcox, cardiologist, stating:
[Mr Pozzi] has been a patient of mine since 1995. In the fifteen years that I have seen him as a patient his domestic situation has been tenuous and over the years worse. As I understand I he and his wife live separate lives under the same roof for economic reasons and have done so for many years. As he describes it, it is a less than harmonious arrangement but one borne of economic necessity. He obviously continues to wish to be a supportive parent to his children and being a large pillar of the local church he has religious beliefs which makes separation and divorce very difficult for him. The history he has told me over fifteen years has been completely consistent over time. His work circumstances have changed but his story has not.
26. Mr Pozzi has also submitted a letter dated 3 February 2010 from his general practitioner, Dr Michael Lo, which states:
[Mr Pozzi] has been attending our surgery for anxiety and depression. He has been separated from his wife despite the fact they still live together. They are still under the same roof due to financial reasons only. There has been conflict between them for which Mr Pozzi is having counselling.
27. The Secretary submits that no weight should be given to these letters because they do no more than record what Mr Pozzi has told his doctors. I do not accept that submission entirely. While it is true that both letters record Mr Pozzi’s account, I attach some weight to A/Professor Wilcox’s statement that Mr Pozzi has recounted the same story to him consistently for fifteen years.
28. Mr Pozzi has also submitted letters from a cousin who has known him for fifty years and from a friend of forty years. Both state that he lives with his separated wife and has slept in the lounge room for the past two years; he does his own cooking, cleaning and washing while sharing the kitchen, laundry and outside area. While I have no reason to doubt the genuineness of the letters, neither writer has given evidence; their statements have not been tested, and I accept the Secretary’s submission that no weight should attach to either letter.
Consideration
29. A married couple may live separately and apart even though they continue to live under the same roof. Naturally, where a person claims to be in such a relationship, particularly where there may be a financial incentive, the circumstances require close scrutiny.
30. In Staunton-Smith v SDSS (1990) 32 FCR 164, O’Loughlin J noted that some assistance may be gained as to what amounts to living separately and apart from s 49 (2) of the Family Law Act1975 which 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.
31. Addressing the question of separation, O’Loughlin J noted the comments of Watson J in In Marriage of Todd (No 2) (1976) 25 FLR 260, where he said, 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 in the Act where one or both of the spouses form the intention to sever or not to 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 will vary. Marriage involves many elements, some or all of which my be present in a particular marriage – elements such a dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in private and public relationships.
When it is asserted 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.
32. The factors in s 4(3) are not exhaustive and nor should they limit the inquiry. “The Tribunal will make its determination whether a 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”: Staunton-Smith v Secretary, Department of Social Security (above) at 170.
33. In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546, French J (as he then was) considered a number of authorities on the meaning of the term “marriage-like relationship” and held (at 555) that:
Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1.Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2. Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other.3.In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4. Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5.Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.
34. His Honour noted, at 556:
The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
35. Turning to the matters in s 4(3).
36. In the financial aspects of their relationship, other than Mr Pozzi paying half of the rent and a contribution towards electricity, he and his wife are quite separate. They have no joint assets and, other than the joint tenancy, no joint liabilities. There is no pooling of resources or evidence of financial support of each other. They maintain separate bank accounts and meet their own expenses.
37. Their living arrangements are quite separate. They share work around the house to the extent that Mr Pozzi looks after the garden and his wife looks after the inside of the house but the division of labour appears to be quite rigid and neither crosses into the other’s patch. At most, Mrs Pozzi occasionally does his laundry. They have apparently reached an accommodation about this but I do not accept the Secretary’s contention that the household is managed jointly in any meaningful way.
38. There is no evidence about the extent to which Mr and Mrs Pozzi represent themselves as married or separated but I accept they have no social relationship and do not engage in joint social activities in any meaningful way. I do not accept the Secretary’s contention that eating a meal once or twice a year together on birthdays, when initiated by the children, and sometimes watching television as a family, amounts to a “significant level of joint social interaction”.
39. There has been no sexual relationship for ten years and, before that, very little for a further ten years.
40. There is no evidence of any meaningful commitment by Mr and Mrs Pozzi to each other. Mrs Pozzi told the SSAT she would care for her husband if he became ill, but the relationship appears largely hostile and without any real communication. Neither sees any prospect of change for the better. The Secretary contends that neither has any intention of changing their current living arrangements and that appears to be the case but it does not follow that either has any meaningful commitment to the other. I accept that, if he could afford to, and still see his children, Mr Pozzi would find somewhere else to live.
41. Taking all of these factors into account, the weight of the evidence supports the conclusion that Mr and Mrs Pozszi have been living separate and apart on a permanent basis during the relevant period.
42. The Secretary contends that, in most respects, Mr and Mrs Pozzi’s relationship has been as it is now for many years and that little has changed just because Mr Pozzi moved out of the bedroom. The Secretary agrees with the SSAT’s conclusion that there is insufficient evidence of change in the relationship to establish on the balance of probabilities that they have been living separately and apart on a permanent or indefinite basis, at least since 21 December 2009 when Centrelink formally decided that Mr Pozzi was only entitled to Newstart Allowance at the partnered rate.
43. With respect, this formulation imports a test that is not required by the legislation. As O’Loughlin J said in Staunton-Smith v SDSS (above), when determining whether 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. The question is whether or not, as a matter of fact, the parties are living separately and apart; they are not required to establish a sufficient degree of change for that finding to be made.
44. Mr and Mrs Pozzi do not appear to have had a marital relationship in any meaningful sense for many years but that does not preclude a finding that they are now living separately and apart on a permanent basis.
45. I am satisfied, on the evidence, that Mr Pozzi was living separately and apart from his wife on a permanent basis at the time he applied for Newstart Allowance and continues to do so.
Conclusion
46. The decision under review is set aside and I decide instead that Mr Pozzi was living separately and apart from his wife on a permanent basis at the time he applied for Newstart Allowance and since. As he is not a member of a couple, he is entitled to payment at the single rate.
I certify that the 46 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill TooheySigned: .......................[sgd].........................................................
Diana Weston AssociateDate of Hearing 20 October 2010
Date of Decision 21 October 2010
ApplicantSelf-represented
Representative for the Respondent Ms Radhika Prasad, Centrelink Advocacy Branch
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